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HomeMy WebLinkAbout006 Ditch Company response narrativeDitch Company response narrative The developer and consultant team have been heavily engaged with the ditch companies for more than 2 years regarding the proposed Homestead at Buffalo Run community and how it may impact the existing irrigation ditches. These discussions have been “two pronged” in that there are two (2) ditch elements in need of coordination and communication. The first element is the Middle Creek Ditch lateral that traverses the subject property from the south to the north. This lateral has a total of four (4) water rights owners including the Homestead at Buffalo Run property. The property to the north of the subject property is the last downstream water right owner on the ditch lateral (Bozeman Haus Two, LLC). The two (2) upstream water rights owners are KDG Holdings and Jon and Elizabeth Christensen. The Middle Creek Ditch Company has expressed an interest in abandoning this ditch lateral due to water usage concerns for irrigation being impacted by a waste and seepage water right, as this is not a guaranteed water right. Discussions have been had with the other three (3) water rights owners and all but the most upstream water right owner (Jon and Elizabeth Christensen) are in agreement to terminate their water rights. As required by BMC 38.360.280. Agricultural Water User Facilities and BMC 38.410.060. Easements notification has been provided to the adjacent property owners with water rights on the ditch lateral. See provided emails, with attachments, as evidence of notification. Both Bozeman Haus Two, LLC (the only downstream water right owner) and KDG Holdings (adjacent water right owner to the south) have already provided a response to our notification as can be evidenced by the enclosed emails. The emails generally state that Bozeman Haus Two, LLC and KDG Holdings wish to terminate their water rights and no longer receive the water they have the right to. As a result of this comment/response, the developer has revised the Site Plan to no longer show the proposed piping of the ditch to the Bozeman Haus Two, LLC property. Additionally, Bozeman Haus Two, LLC is in the process of filing a form of termination of water rights with DNRC. Evidence of that filing will be provided once obtained. The second element is the ditch that runs along the east side of Fowler Lane. This ditch is impacted due to the requirement by the City of Bozeman to construct and widen Fowler Lane to a minor arterial status. This ditch currently provides dual functions as both an irrigation ditch and a borrow ditch for Fowler Lane. There are five (5) entities that we have been communicating with regarding the impacts to this ditch. Those entities are: • Middle Creek Ditch Company • West Gallatin Canal Company • Montana State University • Bradley Family Revocable Trust • Haggerty Family, LLC Extensive effort has been put forth to communicate and coordinate with these entities including the following: • Preparation of engineering reports and calculations to confirm that the proposed changes to the irrigation ditches have no adverse impact on the stakeholder’s ability to continue receiving the same volume of water as historically received and without interruption. • Multiple meetings, emails and phone calls including attendance at a Middle Creek Ditch Company Board meeting to discuss the project. • Multiple design options and ideas have been presented and comments received have been incorporated into re-designs for further comment or consent. To date, three (3) different designs have been presented. The scope of work for the project has been expanded to accommodate the requests of the ditch owners. • Hiring of legal counsel, Susan Swimley and Abigail Brown, to assist and advise us in communications with the stakeholders. • Preparation of legal agreements with exhibits for signatures from stakeholders. Copies of all agreements are enclosed. • Hard copies of agreements were sent via USPS on March 21, 2022, with tracking to ensure delivery of all agreements. Copy of receipt is attached. Additionally, an email of agreements to all stakeholders was also sent on March 21, 2022. • Follow up with all stakeholders for any questions, concerns or comments and conversations are still ongoing. As of this date, we have had the following responses from the stakeholders: • Middle Creek Ditch Company – Acknowledged having received the agreement but have not yet received a signed agreement. We understand that some members of the Middle Creek Ditch Company have voiced opposition to the development previously and have shown reluctance to signing an agreement. • Haggerty Family, LLC – Mr. and Mrs. Haggerty have voiced general opposition to development of the area and has responded that he is not interested in signing an agreement without additional time, despite much individual correspondence and modifications of the proposed design based on his feedback. • Montana State University – Acknowledged having received the agreement and asked for more detailed plans of the ditch relocation. As requested, plans were provided to MSU for their review and comment. Communications are ongoing between the MSU attorney and the developer’s attorney. MSU is having their own civil engineers review the design and once confirmed that they will indeed continue receiving their water as historically, they intend to sign the agreement. • Bradley Family Revocable Trust – Acknowledged having received the agreement and we are expecting a signed agreement shortly. • West Gallatin Canal Company – Acknowledged having received the agreement and we have received a signed agreement. A copy of that signed agreement is enclosed. It is possible that the Middle Creek Ditch Company and the Haggerty Family, LLC will not sign the agreement we presented them. However, to date neither have provided written comments explaining their hesitation.