HomeMy WebLinkAboutTPL Story Mill Water Rights Memo Jan 23 2014 With Appen (2)Trust for Public Lands – Story Mill Property
Water Rights Review
January 23, 2014
Memorandum
To: Trust for Public Lands
From: DMS Natural Resources LLC
Date: January 23, 2014
Re: Trust for Public Lands – Story Mill Property - Water Rights Review
Background & Overview
This memo contains DMS Natural Resources’ (DMS) review of the water rights associated with the Story
Mill property. In 2012 the Trust for Public Land (TPL) purchased the Story Mill property (subject
property). The subject property is located on the North side of Bozeman in Gallatin County, Montana.
The subject property is comprised of three separate parcels commonly referred to as: 1, North parcel in
the S2SE Section 31, Township 1 South Range 6 East and N2N2NE Section 6 Township 2 South Range 6
East; 2, South parcel in the NE of Section 6 Township 2 South Range 6 East; and 3, the Triangle parcel in
the SENENE Section 6 Township 2 South Range 6 East and W2NWNW Section 5 Township 2 South Range
6 East. The subject property’s is located in Basin 41H, Gallatin River.
TPL retained DMS to identify the current water rights associated with the subject property and evaluate
the water right permitting requirements for the future water uses on the property. As part of the
analysis, DMS researched and reviewed the water rights associated with the Story Mill property. This
memo provides the resulting inventory of water rights associated with the subject property. DMS also
researched current and planned water uses on the property to identify permitting requirements and
opportunities. The memo includes a discussion aligning the property’s water right portfolio with the
future water needs on the property, outlining future water permitting requirements.
Water Rights Inventory
DMS executed a search of the Department of Natural Resources (DNRC) water rights database to
identify all water rights appurtenant to the subject property. This included searches by current and
previous owner names and by place of use (legal land description). The water right search definitively
revealed 4 water rights appurtenant to the subject property plus an additional 2 water rights that may
be associated with the property. The 6 water rights are listed in Table 1. The water right abstracts are
provided in Appendix A. A map depicting the point of diversion (POD) locations and general places of
use (POU) is provided as Appendix B.
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Water Rights Review
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Table 1: TPL Water Rights Summary Results
Water Right
Number
Current Owner
Name Source Water Right Type Status Priority
Date Purpose Flow
Rate
Flow
Rate
Units
Volume
(AF) Acres
Definitively on TPL Land
41H 103068 00 HENDERSON
CARROL V
EAST GALLATIN
RIVER
PROVISIONAL
PERMIT Terminated 10/29/1997 FISH AND
WILDLIFE 113.5 GPM 183.07 N/A
41H 116459 00 TRUST FOR
PUBLIC LAND GROUNDWATER GROUND WATER
CERTIFICATE Active 6/25/2001 DOMESTIC 28 GPM 1.63 N/A
41H 140987 00 TURNER
ROBERT A
SOURDOUGH
CREEK
STATEMENT OF
CLAIM Active 7/31/1866 IRRIGATION 157.08 GPM N/A 60
41H 140988 00 TURNER
ROBERT A
SOURDOUGH
CREEK
STATEMENT OF
CLAIM Withdrawn 7/31/1866 INDUSTRIAL 0.35 CFS N/A N/A
Potentially on TPL Land
41H 46722 00
BLUE SKY
DEVELOPMENT
LLC
GROUNDWATER GROUND WATER
CERTIFICATE Active 4/28/1982 DOMESTIC /
LAWN & GARDEN 50 GPM 6 2
41H 49720 00 CARTER PAUL GROUNDWATER GROUND WATER
CERTIFICATE Active 3/28/1983
DOMESTIC /
STOCK / LAWN &
GARDEN
16 GPM 5.41 0.5
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There is one Groundwater Certificate, one terminated Provisional Permit, and two Statements of Claims
(one withdrawn) associated with the property. There are two additional Groundwater Certificates that
may be associated with the property. Each type of water right has different regulatory rules and
processes.1 Throughout the memo all types of water assets are generally referred to as water rights. If
the report is discussing a specific right, then DMS uses the specific water right type (claim, permit,
certificate, or exempt from filing) to refer to that asset.
In addition to searching for water rights based on legal land description, DMS also searched for water
rights by previous owner names. This was done to identify water rights owned by a predecessor, but
have the wrong legal land description on the claim.2 Previous owner names were provided by TPL on
December 31, 2013.3 Additional previous owner names were identified by DMS in reviewing water right
files, Water Resource Survey field notes and the Title Insurance Policy.4 Previous owner name searches
were performed on: Carroll V. Henderson, Vera E. Henderson, Donald & Susan Turner, Robert Turner,
Lynn Haniuk, Lynne Haniuk, Thomas & Judith Deibele, American Bank, Blue Sky Development, Matthew
Crocker, Edna Blixseth, Nelson & Ellen Story, Paul Carter, Elizabeth & Earl Brown, H.C. Norwood, Lloyd
King, E.B. Keliz, William & Donna Wise, Jessie Francis and Montana Industrial Development Corporation.
The three parcels owned by TPL were historically multiple smaller parcels. The previous parcels were
assembled in various transactions and all have different predecessors. It is likely there are additional
previous owner names that were not searched. If TPL would like to perform a more comprehensive
previous owner search it is recommended TPL obtain a chain of title report from the title company
which would identify all predecessors.
Water Rights Assessment
DMS reviewed the water right documentation available from the DNRC, Montana Bureau of Mines Well
Log and Water Resource Survey to identify issues associated with the current water rights. All water
rights have multiple supporting documents on file with the DNRC. These water right files were
requested from the DNRC and reviewed. A varying degree of information is available for each right. The
files typically include the original claim, certificate or permit filings, maps, change applications, flow
records, previous court decrees, affidavits, and other documentation. The water right files provide a
baseline of information about each water right.
DMS also reviewed the Montana Water Resources Survey (WRS) for relevant information pertaining to
the water rights. The WRS was a state-based initiative in which the State Engineers Office and the
Water Resources Board collected and recorded comprehensive water use data across the state. The
WRS was performed in 1961 for Gallatin County. The WRS is one source of information when assessing
1 It was outside the scope of this analysis to define the different type of water rights and their unique regulations and permitting requirements.
DMS can provide this information at a later date if requested by TPL. 2 It is common for water rights to have mis-coding or administrative errors in the legal land descriptions on file with the DNRC. 3 Email from Maddy Pope, Project Manager, TPL, December 31, 2013.
4 Owner’s Policy of Title Insurance, Policy Number OX-08800372, Issued by Old Republic National Title Insurance Company.
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use history. However, the WRS is not definitive and other sources of information are required to confirm
historical use.
DMS has not performed a site visit of the Story Mill property due to snow cover at the site.5 DMS should
perform a site visit when the snow clears to evaluate the following: 1, evidence of historical irrigation on
the South parcel (under claim 41H 140987 00 described below); 2, the water source and operations of
the pond on the South parcel; 3, identify the exact locations of wells on the parcels.
The following section contains a brief analysis of each individual water right on the subject property. A
summary of the right, any issues, and action items are identified.
41H 49720 00
Summary: 41H 49720 00 is a Groundwater Certificate that was filed in March of 1983. The certificate
was filed, and is currently owned, by Paul Carter. The well was drilled in March of 1983. There is no
well log in the claim file or on file with the Bureau of Mines. Information in the claim file indicates
that Van Dyken Drilling drilled the well. The certificate allows for a withdrawal of water from a well
up to 16 GPM and 5.41 AF per year. The use of the water is for domestic (2 houses and one
apartment), stock (40 cows and 25 hoses), and lawn and garden (0.5 acres) purposes.
Issues:
The well and use of the water are identified in the SESESE Section 31 Township 1 South Range 6 East
(the southeast of TPL’s North parcel). No map was provided in claim file to further pinpoint the
exact well location. TPL, Wake Up Inc., and Christie Clifford and Sally Franklin each own portions of
the SESESE Section 31 Township 1 South Range 6 East. Paul Carter was a known predecessor to
portions of TPL owned land, but he may have also owned the Wake Up Inc. parcels and/or the
Christie Clifford and Sally Franklin parcel. There is not enough information in claim file to determine
which property this well is located on.
Ownership has not been updated. This certificate is currently in Paul Carter’s name but is actually
owned by either TPL, Wake Up Inc., or Christie Clifford and Sally Franklin.
Action Items: Site visit to determine if well on TPL property or on neighboring property owned by
Wake Up Inc., or Christie Clifford and Sally Franklin. If well is on TPL property, file ownership update
paperwork with DNRC.
5 The depth of the snow makes it difficult to identify well locations and evidence of historic water use.
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Water Rights Review
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41H 49722 00
Summary: 41H 49722 00 is a Groundwater Certificate that was filed in April 1982. The certificate was
filed by Tom Deibele. In 2005 there was an ownership update showing the transfer from Deibele to
Blue Sky Development. The certificate allows for a withdrawal of water from a well up to 50 GPM
and 6.00 AF per year. The use of the water is for domestic (1 house) and lawn and garden (2.0 acres)
purposes. According to the certificate application the well was drilled in 1968 by a previous
property owner (previous to Deibele).
Issues:
The legal land description for this certificate may be incorrect. The current POD (well location) and
POU are identified in the SWSE of Section 18 Township 1N Range 6E. The property in this location is
owned by Autumn Ridge Company, LLC. However, the deed provided in the 2005 Ownership Update
(DNRC files) conveying the right from Deibele to Blue Sky is for TPL’s Triangle parcel. Deibele did
own the Triangle parcel so it is possible the legal land description of the well is incorrect.
Alternatively, the incorrect deed may have been provided or scanned into the 2005 Ownership
Update. There is no map in claim file to definitively determine the location of this well. There is no
well log in the claim file. The current location of the well does not appear to match any of the well
logs on file with the Bureau of Mines in the SWSE of Section 18 Township 1N Range 6E. There is not
enough information in claim file to determine where this well is located.
Ownership has not been updated. This certificate is currently in Blue Sky Development’s name, but
actually owned by either TPL or Autumn Ridge Company, LLC.
Action Items: Site visit to determine if well on TPL Triangle parcel. If well is on TPL property, file
ownership update paperwork with DNRC.
41H 103068 00
Summary: 41H 103068 00 was a Provisional Permit filed by Carrol and Vera Henderson. The Permit
was applied for in 1997 for a surface water diversion of 113.5 GPM (0.25 cfs) up to 183.07 AF from
East Gallatin Creek. The water was to be used for Fish and Wildlife purposes in two small man-made
ponds. One of the proposed ponds was going to be constructed on the south side of TPL’s North
parcel. The other pond was going to be constructed on the parcel of land to the west of the North
parcel now owned by The Boys and Girls Club (both parcels were historically owned by Carrol and
Vera Henderson). See map in Appendix B.
Issues: Permit has been terminated. The ponds were not constructed. Permittee never completed
project nor put water to beneficial use. A Notice of Completion was not filed.
Action Items: None. This permit will remain terminated.
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41H 140987 00
Summary: Statement of Claim for irrigation purposes. Place of use (shown in the map in Appendix B)
is 60 acres on the southwest side of the South parcel, geo-code 06-0799-06-1-01-03-0000. Source is
Sourdough (Bozeman) Creek with a diversionary flow rate of 157.08 GPM (0.35 cfs). Claim is based
on Decreed right to Nelson Story on July 31, 18666 in Gallatin County court case 2493, Nelson Story,
et al v J.H. Aylesworth, et al, decided October 6, 1897. In 1982 the claim was originally filed by a
partnership owned by Keltz, Cook, Lehrkind, Turner and Corette. In 1996 Keltz, Cook, Lehrkind, and
Corette transferred their interest in the property and water right claim to Robert Turner.
In Water Court proceedings in the late 1990’s, the City of Bozeman objected to 41H 140987 00. The
claimant and the City reached a stipulation subordinating 41H 140987 00 to the City’s Sourdough
(Bozeman) Creek rights. The Water Court accepted this stipulation in case 41H-176 and ruled that
the owner of 41H 140987 00 cannot call for water against the City on Sourdough (Bozeman) Creek.
No other elements of the claim were changed in this proceeding.
Issues: This claim may not have been use in recent years. WRS map shows no irrigation at the POU.
WRS field notes list this appropriation as appurtenant to multiple properties near the POU for 41H
140987 00. Parcel 06-0799-06-1-01-03-0000 appears to have been identified as owned by Lloyd King
and E.B. Keliz in the WRS field notes. The WRS field notes indicate the appropriation was “not used
for several years. King plowed ditch out.”
The claim indicates the diversion is McAdow Ditch in NWNWSE Section 6 Township 2 South Range 6
East. Based on the WRS it appears the McAdow Ditch is on the west side of Sourdough (Bozeman)
Creek.
Ownership has not been updated. This claim is owned by TPL.
Action Items: Perform site inspection to locate point of diversion and any identify signs of recent
use. If recent irrigation use7 can be identified and supported, it is possible this claim could be
changed to another purpose of use. This claim could potentially be changed to a wetlands purpose
of use to protect water levels at the restored wetlands (see discussion below in section “New Water
Uses on Story Mill Property”). Another option would be to change this claim to instream flow
purpose and protect the flow in Sourdough (Bozeman) Creek. This might be an attractive option to
the City of Bozeman once they acquire the property. Protecting additional flows in the East Gallatin,
which Sourdough (Bozeman) Creek flows into, could help towards the City’s water dilution
requirements coming out of the waste water treatment plant. After the site visit is performed, the
appropriate next steps for claim 41H 140987 00 will be determined. Ownership should be updated.
6 Decree actually says July 1866, but claimant claimed July 31, 1866. In case 41H-176 the Water court did not change the priority date.
7 Ideally within the last 10 to 15 years.
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41H 140988 00
Summary: 41H 140988 00 is a Statement of Claim for industrial purposes. The place of use, shown in
the map in Appendix B, was on the southwest side of the South parcel, geo-code 06-0799-06-1-01-
03-0000. Source is Sourdough (Bozeman) Creek with a claimed diversionary flow rate of 14 Miners
Inches (0.36 cfs). Claim is based on Decreed right to Nelson Story on July 31, 18668 in Gallatin
County court case 2493, Nelson Story, et al v J.H. Aylesworth, et al, decided October 6, 1897. In 1982
Statement of Claim originally filed by a partnership owned by Keltz, Cook, Lehrkind, Turner and
Corette. In 1996 Keltz, Cook, Lehrkind, and Corette transferred their interest in the property and
water right claim to Robert Turner.
In Water Court proceedings in the late 1990’s, the City of Bozeman objected to 41H 140988 00. The
owner of the claim at the time of the proceedings, Robert Turner, withdrew 41H 140988 00
indicating he had no existing water right to the claim. The Water Court accepted this withdrawal in
case 41H-176 and deemed 41H 140988 00 withdrawn.
Issues: Claim has been withdrawn and is not an active claim. It is highly unlikely that the ruling in
case 41H-176 could be reversed and the claim reinstated.
Action Items: None. This claim will remain inactive.
41H 166459 00
Summary: Groundwater Certificate for domestic use. 28 GPM and 1.63 AF. The well was drilled in
2000 for previous property owners of the Triangle parcel, Tom and Judith Deibele. This Certificate is
currently in the name of Trust for Public Lands. Groundwater Certificate was filed in June 2001.
Issues: Legal land description and geo-code in DNRC system is incorrect. The DNRC shows this well in
NENENE Section 6, 2 South, 6 East on parcel 06-0799-06-1-01-55-0000. This is the parcel
immediately north of the Triangle Parcel, owned by Wake Up Inc. However, map in claim file shows
the location of the well on the Triangle Parcel and DMS understands that the Deibeles were prior
owners of the Triangle Parcel.
Action Items: Perform site inspection to GPS location of well on Triangle parcel. File 625 to correct
the legal land description and geo-code with DNRC.
8 Decree actually says July 1866, but claimant claimed July 31, 1866. In case 41H-176 the Water court did not change the priority date.
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Unpermitted Groundwater Uses on Property
There are two types of unpermitted water uses on the subject property: the wells associated with the
former trailer park located on the north parcel; and the pond on the south parcel. Both situations are
described in this section.
North Parcel, Trailer Park Wells
There are three wells located on the North parcel.9 The well logs of the wells are included in Appendix C.
It appears that the three wells historically provided water for the trailer homes, and most likely
additional lawn and garden water.10 Two of the wells were drilled 1971 and the other was drilled in
1972. In 2007 a previous consult to Blue Sky Development (property owner as of 2007) attempted to
file for water rights to these three wells. The forms utilized and submitted to the DNRC by the previous
consult were altered by the consultant. They altered the header of a Form 602 to attempt to file with a
priority date between 1962 and 1973.11 The DNRC did not accept the altered forms and likely sent a
deficiency letter to the applicant explaining they will not accept altered forms.12 It does not appear that
a water right was further pursued by Blue Sky Development. There are no water rights at the present
time for these three wells.
There is potentially a fourth well located on the North parcel.13 The well log is provided as Appendix D.
The well was drilled for MT View Estates in June of 2000. The well tested at 50 GPM and the well driller
indicated “domestic” use. The location of the well log as mapped by the Bureau of Mines appears
immediately north of Bridger Drive, not on TPL property. However, locations provided by well drillers to
Bureau of Mines are not always accurate. It is unknown if MT View Estates was a previous owner of the
trailer park. To definitively determine this DMS could search through the deeds on file with the county.14
In lieu of searching the historical deeds, to more definitively determine if this well was associated with
the trailer park, DMS tried to match this well up to nearby 3rd party water rights. There are no water
rights in the name of MT View Estates. Claim 41H 34051 00 is for 50 GPM associated with the Osborn
Subdivision, Lot D. This lot is north of Bridger Drive towards the golf course. However, 41H 34051 00 is
for commercial purposes, owned by Andrew Nye (previously Miller Ice Company), and has a priority date
of 1981. It is possible the Mt View Estates well is a replacement well for a previously drilled well
associated with 41H 34051 00. If not, then it is likely this well is actually on the North parcel and was
previously associated with the trailer park. It is recommended to perform a site visit when the snow is
cleared to see if there is a fourth well on the North parcel and search the historical deeds to definitely
determine if MT View Estates was a previous property owner.
9 Well Logs: 92047, 92048, 92049. 10 This is assumed based on the well log name, well log purpose of “public water supply”, and location. 11 This was likely an attempt to push DNRC into keeping the older priority date after DNRC made the decision to no longer accept the Form 627. 12 DNRC does not have record of the deficiency letter, but also has no record of the form submitted. The Regional Manager in the Bozeman
office indicated they typically kept the altered forms and deficiency letters for one to two years after submitted, then purged the documents.
Conversation and Email from Kerri Strasheim, DNRC Bozeman Regional Manager, January 3, 2013. 13 Well log: 183381.
14 Searching the deeds at the county was beyond the scope of this initial project.
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There three (potentially four) trailer park wells should be permitted via a Form 602, Groundwater
Certificate. Groundwater Certificates are issued for small groundwater uses from a well, developed
spring or excavated groundwater pit. The threshold for Groundwater Certificates is a maximum water
use of 35 GPM and 10 AF per year.15 The process the water user goes through includes: first develop
the groundwater well, pit or spring; file a Well Log Report with the Bureau of Mines; within 60 days of
the groundwater development submit a Notice of Completion of Groundwater Development with the
DNRC.16 Wells and groundwater uses permitted with Groundwater Certificates are commonly referred
to as “exempt wells”.
The priority date of the appropriations will be the date the applications are received by the DNRC. The
applications will be for the future water use on the property, as opposed to the historic use at the trailer
park. The future use is described below in the “New Water Uses on Story Mill Property” section. The
future use of water from the wells is likely well below the historical use at the trailer park. However,
because no claims were filed for the historical use, there is little opportunity to permit the historical
flows and volumes.17
There are pending changes to the definition of ‘combined appropriation’. The pending rule changes, if
approved, will dictate if an applicant has to combine the volumes/flows across multiple wells in order to
meet the 35 GPM and 10 AF thresholds. This may create a situation in which multiple groundwater
developments, although individually less than 35 GPM / 10 AF, have to combine their flows and volume
and thus do not stay under the 35 GPM / 10 AF. In this situation the ‘combined appropriation’ would not
qualify for a Groundwater Certificate, but instead require a Provisional Permit. The proposed definition
changes may impact the ability to permit the water use from each well independently. As a result of the
pending rule changes, DMS recommends that as soon as the site plan is completed for the North Parcel,
file the 602’s.
South Parcel, Groundwater Pit
There is a manmade groundwater pit on the South parcel located in the NESENE of section 6 Township 2
South Range 6 East. The pit’s water source is excavated groundwater. The pit is approximately 0.44
surface acres and approximately 5 feet deep.18 It is believed that this pit was constructed in the 1950’s19,
and likely used by the railroad and/or slaughterhouse to create cooling ice. The pit does not have a
15 As of Oct 1, 2013 new legislation was passed that reduces the exempt threshold down to 20 GPM and 2 AF for wells within Stream Depletion
Zones. There have been no Stream Depletion Zones established yet anywhere in Montana. Thus this reduced threshold does not apply yet. 16 It is not uncommon for wells to be permitted via a 602 years, even decades after development. 17 DMS researched the possibility of the historic water use from these wells qualifying as an exempt from filing water use under Section 85-2-
222 MCA (Montana Code Annotated). In the claims filing process early in the statewide water adjudication, there was an exception for stock
and domestic water uses that began prior to 1973, that are from groundwater or instream source. This exception acknowledges the right for
stock water and individual domestic uses (drinking directly from source (instream), or groundwater) without a filed claim. These claims are
known as “exempt from filing rights”. It appears unlikely the water use from the wells will qualify under the exemption based on purpose of use. The use of water from these wells will likely be considered as “commercial” purpose of use (as opposed to domestic or multiple domestic). 18 Conversation with Richard McEldowney, PWS, RESPEC Consulting & Services, January 3, 2014. 19 Ibid. 18. The Water Resource Survey taken in 1961 does not depict a pond located in this area. Definitely determining the construction date
of the pond will not impact future water right permitting decisions. To definitely determine when the pond was constructed DMS could review
historical aerial analysis. This was outside the scope of the current project.
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water right associated with it. The pit currently provides water for wetlands and wildlife. As described
below in the “New Water Uses of Story Mill Property” section, DMS recommends filing a Form 602 to
obtain a Groundwater Certificate for this excavated groundwater pit.20
New Water Uses on Story Mill Property
There are three planned future uses of the subject property that relate to water. These include re-
development of wetlands, stream bank restoration, and development of a park on the North parcel. The
water right permitting implications and recommendations for each use is described below.
Wetlands
The design plans, displayed in Appendix E, include restoring approximately 8.5 acres of historical
wetlands.21 Appendix F shows the wetlands classification as identified by the Gallatin Local Water
Quality District in 2004.22 As shown in these three figures, the areas of proposed restoration of wetlands
all are classified as historical wetlands. According to the design plans, the majority, ~8 acres, of the
restored wetlands will not have any man made diversion, control or manipulation of water. This portion
of the wetlands will be recreated by filling in old drain ditches and removing fill that has been placed in
the historic wetlands.23 The balance of the wetlands, ~0.5 acre groundwater pit, which will be restored
to a naturalized pond, is an artificial control of water. The permitting requirements are different
depending on if there is manmade control of water. The two permitting paths are described below.
No Manmade Control of Water
If there is no artificial control of water, then restoring natural hydrology does not require a water right.24
In 2009 DNRC proposed administrative rules to specifically define the requirements for wetland
permitting. The proposed rules faced resistance and were never issued. As a result, there is no
administrative rule or statue confirming that wetlands without artificial means of diversion/control do
20 If the pit was historically used for livestock water, then it would qualify as an exempt use under 85-2-222. One could file the 355 forms to
claim the use and obtain a water right. Supporting documentation would need to be obtained regarding the date of first use and proof of
continual use through 1973 for livestock purposes. If filed and the additional fees are paid to expedite the review of the filing through the
water, it likely will still take months if not years to adjudicate the claim. At that point the property owner would then have a filed water right,
but a change application would have to be submitted to change the use from livestock to wetlands and wildlife. Based on the complication,
time and expense, it is not recommended to attempt permit the pit in this manner. Filing a 602 will accomplish the same goal at a fraction of
the time and expense. 21 Story Mill Ecological Restoration Selected Alternative Conceptual Design Report, RESPEC, November 2013, page 38, Table 8-1. 22 Gallatin Local Water Quality District, Wetland Inventory Project, “WETLAND AND RIPARIAN RESOURCE ASSESSMENT OF THE GALLATIN
VALLEY AND BOZEMAN CREEK WATERSHED, GALLATIN COUNTY, MONTANA”, June 2004. 23 Ibid. 18. 24 Conversation with Ethan Mace, DNRC Missoula, January 13, 2014. Conversation with Kerri Strashiem, DNRC Bozeman, January 8, 2014. DNRC
Water Rights and Wetlands FAQs, December 9, 2009.
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not require a permit.25 However, DNRC guidelines clearly indicate that without an artificial means of
control of the water, a restored natural wetlands does not require a water right.
Although not required to have a water right, there will be some risk to the water supply for the
wetlands. The first potential risk is the lack of protection from junior appropriators. This means that the
site owner will not be able to place a call on upstream water users for water to hydrate the wetlands.26
The second potential risk is that that a third party could file a Water Use Complaint to the DNRC claiming
that the restoration is an illegal use of water. The DNRC would review the complaint to see if a valid. If
so, then the complaint would be heard in the district court. Because the TPL project site is so widely
publicized it is reasonable to assume nearby water users will be informed of the water uses on the
property. It is unknown if any would file a complaint. To reduce the likelihood of a complaint, DMS
recommends that the subject property owner talk with neighboring water right holders before initiating
the physical work. The neighbors should be informed of the project and allowed to talk through any
issues they may have.
If TPL feels the above risks warrant obtaining a water right for the restored wetlands there are two
options to pursue: file for a new groundwater permit or change an existing water right. Under current
rules, to obtain a water right or change an existing water right, one must have a diversion, withdrawal,
or impoundment of a quantity of water for a beneficial use27 and that a water right permit can only be
issued if the proposed means of diversion, construction, and operation of the appropriation works are
adequate28. The purpose of use would be wetlands29 and there are guidelines for quantifying the
quantity of water used by the plants within the wetlands. The uncertainty in permitting the natural
wetlands is the means of diversion criteria. In the DNRC’s 2009 proposed rules for wetland water rights
they proposed a method to define the diversion for wetlands where there is no artificial or manmade
means of diversion. The DNRC suggested that the natural impoundments within the wetlands could
constitute the control of water and be the point of diversion.30 This thought process was never
approved into administrative rules and there is still some uncertainty with this approach. Alternatively,
the applicant could describe how the use of water, restored wetlands, does not require a manmade
diversion of water from a source. Previous Supreme Court decisions support the notion of a water right
without a diversion31.
Another consideration in obtaining a permit for the natural, restored wetlands is that Basin 41H is a
closed basin. If a new groundwater right permit is pursued in a closed basin, mitigation water will likely
be required to mitigate the consumptive use of the new groundwater use32. Mitigation water is usually
obtained through retiring historical irrigation surface water rights. Claim 41H 140987 00 described
25 Conversation with Ethan Mace, DNRC Missoula, January 13, 2014. 26 Even if permitted, the ability to make a non-futile call is questionable. 27 MCA 85-2-102(1) 28 MCA 85-2-311 29 The purpose of use, wetlands, is a well established purpose of use recognized by the Montana Water Use Act. 30 DNRC Memo “Wetlands Water Rights” prepared by Brian Bramblett, August 17, 2009, pages 12 through 16. 31 Supreme Court of Montana, Bean Lake III decision, October 9, 2002. 32 There is some question if restoring an historical wetlands actually increases consumptive use. There is no precedent permit application or
change that has decided this question. If the applicant can prove the water use in the wetlands does not increase consumptive use, then no
mitigation water would be required.
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Trust for Public Lands – Story Mill Property
Water Rights Review
January 23, 2014
above, could potentially be used for mitigation water signs of recent use can be identified and
supported. If 41H 140987 00 does not have solid use history, then another suitable water right would
have to be acquired and retired as mitigation.
The second method to permit the restored wetlands would be to change an existing water right. Again,
claim 41H 140987 00 would be an ideal claim to change if historical use can be proven. Otherwise
another suitable water right would have to be acquired and changed. Both a new permit and a change
application are expense and lengthy processes. In addition, obtaining a new permit or changing an
existing right with a lack of a clearly defined artificial diversion would be precedent setting. The lack of
precedent would add considerable time and expense in the process.
DMS recommends sharing the project plans with the DNRC to ask DNRC to confirm, in writing, that the
portion of the subject property project without manmade control does not require a water right. This
may be tough to get from the DNRC as they do not typically provide confirmation of projects that do not
need water rights. However, it is possible the DNRC would be willing to review the proposed project and
provide an informal opinion confirming that the project does not need a water right.
Manmade Control of Water
The only area within the proposed wetlands that will have manmade diversion / control of water is the
existing excavated groundwater pit on the South parcel. This portion of the wetlands will require a
water right.33 The groundwater pit should be permitted with a Groundwater Certificate (Form 602) for
wetlands purpose of use.34 The volume applied for will be determined based upon the sum of: 1, one fill
of the pit capacity; 2, total annual evaporation off the surface area of the pit; and 3, evapotranspiration
of the surrounding wetlands plants. In the 602 application, the applicant and the DNRC will work with
the applicant to delineate the area surrounding pond in which the wetlands vegetation receives
additional water from the manmade pond. If the restored wetland surrounding the pond does not
receive additional water from the pond, then the 602 permit would not have to include the
evapotranspiration from the surrounding wetlands.35 The threshold for Groundwater Certificates is a
maximum water use of 35 GPM and 10 AF per year. By obtaining a Groundwater Certificate for the pit,
TPL will protect the manmade diversion and control of water within and surrounding the pit.
Stream Bank Restoration
The design plans include restoring approximately 2,580 feet of the East Gallatin River (Appendix E).36
The stream bank restoration will be done by removing sidewalk rubble, riprap, old machinery, and trash
33 DNRC Water Rights and Wetlands FAQs, December 7, 2009. DNRC Memo “Wetlands Water Rights” prepared by Brian Bramblett, August 17,
2009. 34 If fish are introduced into the pond, then the purposes could also include “fish and wildlife”. 35 Conversation with Pat Byroth, Trout Unlimited, January 13, 2014. Pat indicated that TU and RESPEC representatives measured groundwater
levels surrounding the pond and it appears that the pond may not be influencing groundwater levels in surrounding wetlands area. DNRC will
likely ask for confirmation of this in the 602 permitting process. 36 Story Mill Ecological Restoration Selected Alternative Conceptual Design Report, RESPEC, November 2013, page 41.
12 | Page
Trust for Public Lands – Story Mill Property
Water Rights Review
January 23, 2014
embedded in the channel. The restored streambanks will be re-seeded with native plants. Similar to the
wetlands permitting discussion above, no water right is required for the stream bank restoration
because there is no artificial means of diversion.
North Parcel, Park
There is a public park planned on the North parcel. The park design is not finalized. The initial design
plans that involve water use include two components:
• One or two bathrooms.37 It is anticipated that the bathroom(s) will run on City water.38
• Approximately 5 to 9 acres of irrigated park land. It is possible some of the acres of irrigated
park will only be two years of temporary irrigation to establish the native vegetation. After the
initial two year irrigated period, these acres would not be permanently irrigated. However,
because the design plans are not yet finalized, a conservative assumption is that all 9 acres will
be permanently irrigated.39 If feasible from a water right permitting perspective, TPL anticipates
that the irrigated park land will not be from City water.40
To permit the future water use in the North parcel park, DMS recommends obtaining a Groundwater
Certificates for each of the three (potentially four) trailer park wells. The use would be commercial
(bathroom) and lawn and garden. Each well will be limited to 35 GPM and 10 AF. The standard water
use for 1 acre of lawn and garden is 2.5 acre-fee per acre per year.41 A maximum of 4 acres of irrigation
can be connected to any one well.
Under present rules, to avoid classification as a combined appropriation, the wells cannot be physically
connected together either above or below ground. DMS recommends obtaining the Groundwater
Certificates within in the immediate future due to the pending rule changes. The proposed changes to
the combined appropriation rules will cause all wells within a 40 acre (or less) parcel to be considered
combined, regardless of physical connectivity.42 All three wells appear to be on one 16 acre tax parcel,
06-0905-31-4-01-05-0000. If the Groundwater Certificates are not obtained before the rule changes, and
assuming they are adopted as currently proposed, the total use from all three wells will be limited to 10
AF and 35 GPM (which is below the total usage for the 9 acres, 22.5 AF). If the combined usage exceeds
10 AF or 35 GPM, then TPL will have to go through the water right permitting process or water be
supplied from the City of Bozeman. The water right permitting process is a lengthy and expensive
process.
37 In the future there may be a visitor center with multiple bathrooms in the center. Conversation with Troy Scherer, Design 5, January 7, 2014. 38 Conversation with Maddy Pope, Trust for Public Lands, January 7, 2014. 39 Conversation with Troy Scherer, Design 5, January 7, 2014. 40 Ibid., 39. 41 DNRC Form 615, Water Conversion Table, 2012. 42 DNRC proposed combined appropriation rule changes: In the matter of the amendment of ARM 36.12.101, 36.12.102, 36.12.103, 36.12.115
and the adoption of New Rules I and II regarding water right combined appropriation, December 16, 2013.
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Trust for Public Lands – Story Mill Property
Water Rights Review
January 23, 2014
Summary of Recommended Actions
The next steps for TPL’s Story Mill water rights are summarized below.
• DMS should perform a site visit when the snow clears to evaluate the following: 1, evidence of
historical irrigation on the South parcel; 2, the water source and operations of the pond on the
South parcel; 3, identify the exact locations of wells on the parcels.
• File ownership updates for 41H 140987 00 and potentially 41H 49720 00, 41H 49722 00.
• GPS location of 41H 166459 00 well. File 625 to correct legal land description and geo-code.
• DMS to meet with the DNRC to discuss wetlands proposed plans. Ask DNRC to confirm, in
writing, that the portion of the subject property project without manmade control does not
require a water right.
• File 602’s for North parcel trailer park wells after the site visit and the landscaping site plans are
completed.
• File 602 for groundwater pit on South parcel when wetlands restoration is initiated.
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Trust for Public Lands – Story Mill Property
Water Rights Review
January 23, 2014
Appendix A:
Water Right Abstracts
15 | Page
Appendix B
Trust for Public Lands – Story Mill Property
Water Rights Review
January 23, 2014
Appendix C:
Trailer Park Wells,
Well Logs
22 | Page
MONTANA WELL LOG REPORT Other Options
This well log reports the activities of a licensed Montana well driller, serves as the official record of work done
within the borehole and casing, and describes the amount of water encountered. This report is compiled
electronically from the contents of the Ground Water Information Center (GWIC) database for this site. Acquiring
water rights is the well owner's responsibility and is NOT accomplished by the filing of this report.
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Plot this site on a topographic map
View scanned well log (2/21/2007 4:28:16 PM)
Site Name: BRIDGER VIEW TRAILER COURT (WELL1)
GWIC Id: 92047
Section 1: Well Owner(s)
1) BRIDGER VIEW TRAILER COURT (MAIL)
702 BRIDGER DR
BOZEMAN MT 59715 [06/28/1999]
2) MT INDUSTRIAL DEVEL CORP (MAIL)
N/A
BOZEMAN MT 59715 [04/26/1971]
Section 2: Location
Township Range Section Quarter Sections
01S 06E 31 SW¼ NW¼ SE¼ SE¼
County Geocode
GALLATIN
Latitude Longitude Geomethod Datum
45.7023 111.0222 MAP NAD27
Ground Surface Altitude Method Datum Date
Addition Block Lot
Section 3: Proposed Use of Water
PUBLIC WATER SUPPLY (1)
Section 4: Type of Work
Drilling Method: CABLE
Status: NEW WELL
Section 5: Well Completion Date
Date well completed: Monday, April 26, 1971
Section 6: Well Construction Details
Borehole dimensions
From To Diameter
0 178 6
Casing
From To Diameter
Wall
Thickness
Pressure
Rating Joint Type
0 178 6 17 LB STEEL
Completion (Perf/Screen)
From To Diameter
# of
Openings
Size of
Openings Description
143 147 6 1/4X3 SLOTS
162 168 6 1/4X3 SLOTS
171 173 6 1/4X3 SLOTS
Annular Space (Seal/Grout/Packer)
From To Description
Cont.
Fed?
5 15 CEMENT GROUT
15 140 DRILL CUTTINGS
Section 7: Well Test Data
Total Depth: 178
Static Water Level: 8
Water Temperature:
Air Test *
70 gpm with drill stem set at feet for 6 hours.
Time of recovery hours.
Recovery water level feet.
Pumping water level 138 feet.
* During the well test the discharge rate shall be as uniform as possible. This rate
may or may not be the sustainable yield of the well. Sustainable yield does not
include the reservoir of the well casing.
Section 8: Remarks
Section 9: Well Log
Geologic Source
Unassigned
From To Description
0 16 CLAYBOUND SANDS & CLAY
16 66 CLAYBOUND SAND & GRAVEL VERY LITTLE WATER
66 67 CLEAN SAND & GRAVEL 30 GPM 33FT DRAWDOWN
67 119 CLAYBOUND SAND & GRAVELS VERY LITTLE WATER
119 129 SOFT CLAYS DRY
129 143 CLAYBOUND SAND & GRAVELS LITTLE WATER
143 144 CLEAN SAND & GRAVELS WATER
144 162 CLAYBOUND SAND & GRAVELS SOME WATER
162 168 CLAYS DRY
168 171 CLEANER SANDS & GRAVELS VERY TIGHT VERY LITTLE H2O
171 173 LOOSE CLEAN SAND & GRAVELS WATER
Driller Certification
All work performed and reported in this well log is in compliance with the Montana
well construction standards. This report is true to the best of my knowledge.
Name:
Company:VAN DYKEN DRILLING INC
License No:WWC-1
Date Completed:4/26/1971
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MONTANA WELL LOG REPORT Other Options
This well log reports the activities of a licensed Montana well driller, serves as the official record of work done
within the borehole and casing, and describes the amount of water encountered. This report is compiled
electronically from the contents of the Ground Water Information Center (GWIC) database for this site. Acquiring
water rights is the well owner's responsibility and is NOT accomplished by the filing of this report.
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Plot this site on a topographic map
View scanned well log (2/21/2007 4:27:47 PM)
Site Name: BRIDGER VIEW TRAILER COURT
GWIC Id: 92048
Section 1: Well Owner(s)
1) MT INDUST DEVELOP CORP (MAIL)
N/A
BOZEMAN MT 59715 [05/30/1972]
Section 2: Location
Township Range Section Quarter Sections
01S 06E 31 SW¼ NE¼ SE¼ SE¼
County Geocode
GALLATIN
Latitude Longitude Geomethod Datum
45.7025 111.0226 MAP NAD27
Ground Surface Altitude Method Datum Date
Addition Block Lot
Section 3: Proposed Use of Water
PUBLIC WATER SUPPLY (1)
Section 4: Type of Work
Drilling Method: ROTARY
Status: NEW WELL
Section 5: Well Completion Date
Date well completed: Tuesday, May 30, 1972
Section 6: Well Construction Details
Borehole dimensions
From To Diameter
0 186 8
Casing
From To Diameter
Wall
Thickness
Pressure
Rating Joint Type
0 186 6 17 LB STEEL
Completion (Perf/Screen)
From To Diameter
# of
Openings
Size of
Openings Description
114 130 6 1/8X6 PERFORATIONS
169 186 6 1/8X6 PERFORATIONS
Annular Space (Seal/Grout/Packer)
From To Description
Cont.
Fed?
3 21 GROUTED
Section 7: Well Test Data
Total Depth: 190
Static Water Level: 8
Water Temperature:
Air Test *
110 gpm with drill stem set at feet for 6 hours.
Time of recovery hours.
Recovery water level feet.
Pumping water level 115 feet.
* During the well test the discharge rate shall be as uniform as possible. This rate
may or may not be the sustainable yield of the well. Sustainable yield does not
include the reservoir of the well casing.
Section 8: Remarks
Section 9: Well Log
Geologic Source
Unassigned
From To Description
0 4 CLAYS
4 72 CLAYBOUND SAND & GRAVELS & SILTY CLAY
72 92 GRAVELS & BOULDERS
92 97 CLAYS
97 110 GRAVELS & BOULDERS
110 114 CLAYS
114 130 GRAVELS & BOULDERS WATER
130 158 SILTY CLAYS W/ A FEW GRAVEL LENSES
158 165 CLAYBOUND GRAVELS
165 187 SAND GRAVELS & BOULDERS WATER
187 190 CLAYBOUND GRAVELS
Driller Certification
All work performed and reported in this well log is in compliance with the Montana
well construction standards. This report is true to the best of my knowledge.
Name:
Company:VAN DYKEN DRILLING INC
License No:WWC-1
Date Completed:5/30/1972
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MONTANA WELL LOG REPORT Other Options
This well log reports the activities of a licensed Montana well driller, serves as the official record of work done
within the borehole and casing, and describes the amount of water encountered. This report is compiled
electronically from the contents of the Ground Water Information Center (GWIC) database for this site. Acquiring
water rights is the well owner's responsibility and is NOT accomplished by the filing of this report.
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Plot this site on a topographic map
View scanned well log (2/21/2007 4:28:24 PM)
Site Name: BRIDGER VIEW TRAILER COURT (WELL#2)
GWIC Id: 92049
Section 1: Well Owner(s)
1) BRIDGER VIEW TRAILER COURT (MAIL)
702 BRIDGER DR
BOZEMAN MT 59715 [06/28/1999]
2) MT INDUST DEVELOP CORP (MAIL)
BOZEMAN MT 59715 [05/29/1971]
Section 2: Location
Township Range Section Quarter Sections
01S 06E 31 SE¼ NW¼ SE¼ SE¼
County Geocode
GALLATIN
Latitude Longitude Geomethod Datum
45.7024 111.0235 MAP NAD27
Ground Surface Altitude Method Datum Date
Addition Block Lot
Section 3: Proposed Use of Water
PUBLIC WATER SUPPLY (1)
Section 4: Type of Work
Drilling Method: ROTARY
Status: NEW WELL
Section 5: Well Completion Date
Date well completed: Saturday, May 29, 1971
Section 6: Well Construction Details
Borehole dimensions
From To Diameter
0 185 8
Casing
From To Diameter
Wall
Thickness
Pressure
Rating Joint Type
0 185 6 19 LB STEEL
Completion (Perf/Screen)
From To Diameter
# of
Openings
Size of
Openings Description
146.5 150.5 6 1/4X3 SLOTS
155 185 6 1/16X6 SLOTS
Annular Space (Seal/Grout/Packer)
From To Description
Cont.
Fed?
0 28 CEMENT GROUT
28 145 BENTONITE
Section 7: Well Test Data
Total Depth: 185
Static Water Level: 10
Water Temperature:
Air Test *
85 gpm with drill stem set at feet for 2 hours.
Time of recovery hours.
Recovery water level feet.
Pumping water level 105 feet.
* During the well test the discharge rate shall be as uniform as possible. This rate
may or may not be the sustainable yield of the well. Sustainable yield does not
include the reservoir of the well casing.
Section 8: Remarks
Section 9: Well Log
Geologic Source
Unassigned
From To Description
0 6 CLAYS
6 57 GRAVELS WET
57 61 CLAYS
61 80 COARSE GRAVELS WET
80 84 CLAYS
84 95 GRAVELS WATER
95 115 GRAVELS & CLAY LENSES
115 126 CLAYSTONE
126 133 COARSE GRAVELS
133 135 CLAYS
135 142 LOOSE GRAVELS WATER
142 145 CLAY
145 176 COARSE SAND & GRAVEL WATER
176 178 CLAYS
178 185 SAND & GRAVEL WATER
Driller Certification
All work performed and reported in this well log is in compliance with the Montana
well construction standards. This report is true to the best of my knowledge.
Name:
Company:VAN DYKEN DRILLING INC
License No:WWC-1
Date Completed:5/29/1971
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Trust for Public Lands – Story Mill Property
Water Rights Review
January 23, 2014
Appendix D:
MT View Estates Well,
Well Logs
26 | Page
MONTANA WELL LOG REPORT Other Options
This well log reports the activities of a licensed Montana well driller, serves as the official record of work done
within the borehole and casing, and describes the amount of water encountered. This report is compiled
electronically from the contents of the Ground Water Information Center (GWIC) database for this site. Acquiring
water rights is the well owner's responsibility and is NOT accomplished by the filing of this report.
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Plot this site on a topographic map
View scanned well log (2/21/2007 4:27:58 PM)
Site Name: MT VIEW ESTATES INC
GWIC Id: 183381
DNRC Water Right: C112655-00
Section 1: Well Owner(s)
1) MT VIEW ESTATES INC (MAIL)
67 THUNDERBIRD RD
SANTA FE NM 87501 [06/09/2000]
Section 2: Location
Township Range Section Quarter Sections
01S 06E 31 NW¼ SE¼ SE¼
County Geocode
GALLATIN
Latitude Longitude Geomethod Datum
45.702789 111.025024 TRS-SEC NAD83
Ground Surface Altitude Method Datum Date
Addition Block Lot
Section 3: Proposed Use of Water
DOMESTIC (1)
Section 4: Type of Work
Drilling Method: ROTARY
Status: NEW WELL
Section 5: Well Completion Date
Date well completed: Friday, June 09, 2000
Section 6: Well Construction Details
Borehole dimensions
From To Diameter
0 40 6
Casing
From To Diameter
Wall
Thickness
Pressure
Rating Joint Type
-2 40 6 .250 THREADED STEEL
Completion (Perf/Screen)
From To Diameter
# of
Openings
Size of
Openings Description
40 40 6 OPEN BOTTOM
Annular Space (Seal/Grout/Packer)
From To Description
Cont.
Fed?
0 20 BENTONITE
Section 7: Well Test Data
Total Depth: 40
Static Water Level: 8
Water Temperature:
Air Test *
50 gpm with drill stem set at 35 feet for 1 hours.
Time of recovery 1 hours.
Recovery water level 8 feet.
Pumping water level feet.
* During the well test the discharge rate shall be as uniform as possible. This rate
may or may not be the sustainable yield of the well. Sustainable yield does not
include the reservoir of the well casing.
Section 8: Remarks
Section 9: Well Log
Geologic Source
Unassigned
From To Description
0 2 TOPSOIL
2 40 GRAVEL
Driller Certification
All work performed and reported in this well log is in compliance with the Montana
well construction standards. This report is true to the best of my knowledge.
Name:
Company:HAGGERTY DRILLING
License No:WWC-353
Date Completed:6/9/2000
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Appendix F