Loading...
HomeMy WebLinkAbout017 Ditch Company response narrativeTHE HOMESTEAD AT BUFFALO RUN DITCH COMPANY RESPONSE NARRATIVE Page 1 of 5 The developer has been in contact with Kevin Haggerty from the Middle Creek Ditch Company since the property was purchased in November of 2019. The consultant team have been heavily engaged with Kevin and other representatives of the ditch companies since June 2021 regarding the impacts to the existing irrigation ditch that are expected with the proposed Homestead at Buffalo Run community housing project. The irrigation ditch discussions have been “two-pronged” as there are two (2) ditch elements in need of coordination. Seepage Water Right – Diversion from Middle Creek Ditch The first element is the lateral that traverses the subject property from the south to the north (diverted from the Middle Creek Ditch. 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 lateral conveying this water right is diverted from the Fowler Lane east barrow ditch, partially operated by the Middle Creek Ditch Company (MCDC). The MCDC has expressed an interest in abandoning this ditch lateral due to water usage concerns for irrigation being negatively impacted. Additionally, the seepage right for the four property owners is not a guaranteed water right. Additionally, the flow has been restricted to this lateral recently by the ditch riders. Discussions have been had with the other three (3) water rights owners regarding termination of the rights associated with the lateral. The two most downstream users (Buffalo Run Bozeman, LLC [BRB] and Bozeman Haus Two [BH2]) have filed the necessary paperwork to the DNRC and provided notice 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. Documentation of the DNRC filings by BRB and BH2 have been provided to the City of Bozeman. The two upstream users have elected not to terminate the rights at this time, but the user directly upstream of BRB (KDG Holdings) has indicated they will divert any tailwater from this lateral back to the east Fowler Lane barrow ditch lateral upstream of the BRB property. As a result of the above coordination, the developer of BRB has revised the Site Plan drawing to remove the proposed piping of the ditch throughout the BRB property and into to the BH2 property. THE HOMESTEAD AT BUFFALO RUN DITCH COMPANY RESPONSE NARRATIVE Page 2 of 5 Fowler Lane – Irrigation Water within Barrow Ditches The second element is regarding irrigation waters that are currently conveyed within the Fowler Lane barrow ditches. The existing ditches are proposed to be impacted due to the requirement by the City of Bozeman to construct an urban section within the BRB property frontage and include water, sewer, storm, and dry utilities required to improve Fowler Lane to a minor arterial roadway. There are five (5) primary entities that we have been communicating with regarding the impacts to these ditches. Those entities are: 1. Middle Creek Ditch Company 2. West Gallatin Canal Company 3. Montana State University 4. Bradley Family Revocable Trust 5. Haggerty Family, LLC Morrison-Maierle Inc. (MMI), on behalf of the developer, began speaking with representatives from both MCDC (Kevin Haggerty) and the West Gallatin Canal Company (Dick DeBernardis), as well as the ditch rider to both of companies (Ray Vail) in June of 2021 to ensure that impacts to these facilities were acceptable to the companies which own and operate them. It wasn’t discovered until later coordination with hired legal counsel that Montana State, the Haggerty Family, and the Bradly Family Revocable trust had water rights associated with these ditches. Thereafter, these parties were included in coordination and presented with current designs for consideration. Kevin Haggerty was the person with whom the initial coordination was centered, as he is a board member of MCDC, as well as an individual water right owner as noted above. He also performs maintenance of the ditch facilities along the western side of Fowler Lane using his personal equipment. Additionally, coordination with Dick DeBernardis was had over the phone and in person. Dick seemed to generally approve to the improvements proposed throughout the process, as the facilities affected provide only a tailwater outflow for the West Gallatin Canal and downstream users were not of concern to him. The initial informal coordination with Kevin indicated that an open ditch facility was preferred along the BRB frontage to a storm culvert due to plugging and maintenance concerns. The following requirements by the City of Bozeman precluded the continuation of both the east and west Fowler Lane ditches along the BRB frontage: 1. The city required having storm drain facilities for the urban road section. 2. The design required including a boulevard within the dedicated road easement along the eastern road frontage for pedestrian facilities. 3. Non-city facilities (irrigation facilities – ditches and/or piping) cannot occupy areas within the dedicated road easement. After discussing this feedback with the City of Bozeman, the City agreed to an alternative section which included a single ditch facility within the west barrow ditch of Fowler Lane through the project to accommodate irrigation waters. Using this approach, an initial design was formally presented to MCDC during a board meeting held on January 31, 2022. Additionally, Kellen Gamradt and Jeff Todd were present as representatives from MSU. This design had attempted to minimize disruption of the existing THE HOMESTEAD AT BUFFALO RUN DITCH COMPANY RESPONSE NARRATIVE Page 3 of 5 ditch facilities as much as feasible while maintaining the required flow for irrigation. The design analysis also included providing an allowance for stormwater run-off to the ditch facilities from areas upstream. The design included modifying the ditch grades south of the BRB property to permit the eastern ditch to be redirected to the west and be conveyed past the BRB frontage where the flow direction and rates could be adjusted using a control structure east across Fowler Lane or continue in the west barrow ditch. The control structure was initially proposed just north of the BRB property. A follow-up meeting was scheduled on February 16, 2022 with representatives of MCDC, West Gallatin Canal Company, MSU, and the Haggerty Family LLC to receive and discuss additional feedback. A copy of the design exhibit was provided in hard copy form to those in attendance. It was noted that the Bradley Family Revocable Trust entity needed to be included in any drafted agreements and they were looped in with the revised design plans noted below. The representatives provided the following feedback: • It was preferred that the irrigation waters be confined to a single ditch, if possible, from the diversion point near the Parshall flume to Stucky Road. This included a significant change in scope from the initial design as it had proposed to end just north of the BRB property (additional ~ 0.7 miles of improvements). o All areas where combined flow would be conveyed in the west barrow ditch would be improved to a cross section capable of handling all irrigation waters and stormwater run- off. o The flow then could be diverted as needed near Stucky road to maintain flow to both downstream users of MCDC waters and MSU. o Crossings should be performed using culverts installed at a 45-degree orientation to reduce losses, clogging, and erosion. o Ultimately, the design selected included both ditches until north of the Blackwood Road & Fowler Lane intersection. From this point, the eastern ditch was diverted to the west using 45-degree culvert and into an improved western ditch. All waters from this point until near Stucky Road would be conveyed by the combined improved west ditch cross section. ▪ Diversions from the west ditch were maintained. ▪ Existing culverts beneath accesses are proposed to be upsized to provide sufficient capacity. ▪ A diversion for MSU-owned water rights is provided just south of Stucky Road. • Representatives indicated that they had preferred if an existing culvert that directs flow from west to east (installed recently in the last 15-20 years) which is located near the primary diversion/Parshall flume be abandoned. o Ultimately this was not feasible based on further research of water users which would have been affected. ▪ Real Red LLC has a water right they use which can be diverted from the east Fowler Ditch which is located south of Blackwood Road within the east Fowler Lane barrow ditch. THE HOMESTEAD AT BUFFALO RUN DITCH COMPANY RESPONSE NARRATIVE Page 4 of 5 Follow-up emails from this meeting were sent to the parties in attendance, plus the Bradley Family Revocable Trust and Real Red LLC presenting the coordination to date and a revised design. At that time, the developer had reached out to all parties and presented a design alternative and draft agreements for consideration and signature. These agreements were sent out to the parties on March 21, 2022 in both email and hard copy letters with tracking. Further coordination was performed by MMI and MSU’s engineering consultant HydroSolutions Inc. An initial phone call was held with Luke Osborne on April 28, 2022. A design memo and supporting calculations were sent to the consultant for feedback on May 18, 2022, and questions addressed during subsequent coordination in June. Very little questions have been received that indicate to us that this consultant has issues with the proposed design methodology. Meanwhile, Kevin Haggerty has indicated to us that he has a general negative outlook on the project in general due to the proximity to his family’s land. He does not wish the area near his property to be developed and has mentioned that there really are no engineering solutions that could be presented that would assuage his outlook on the project and development of this nature in the area. We do not expect at this juncture to receive a signed agreement from him as a representative of Haggerty Family, LLC. Additionally, due to his standing as a primary representative and board member of MCDC, we are uncertain if the MCDC board will agree to sign due to Kevin’s influence. As described above, 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 MCDC 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 the same day. • Follow up with all stakeholders for any questions, concerns or comments and conversations are still ongoing. THE HOMESTEAD AT BUFFALO RUN DITCH COMPANY RESPONSE NARRATIVE Page 5 of 5 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 MCDC 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 – A signed agreement has been received and is fully executed. A copy of the fully executed agreement is enclosed. • West Gallatin Canal Company – A signed agreement has been received and is fully executed. A copy of the fully executed agreement is enclosed. • It is possible that the MCDC and the Haggerty Family, LLC will not sign the agreement we presented them. However, to date neither have provided written comments explaining their hesitation.