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HomeMy WebLinkAbout08 - Agricultural Water Users - Water Rights Determination Letter7 West 6th Avenue, Suite 4R Helena, Montana 59601 Main 406.317.7220 Fax 406.317.7221 A Professional Law Corporation Abigail R. Brown Attorney at Law Direct 406-317-7243 abbybrown@parsonsbehle.com PARSONSBEHLE.COM 4860-6724-5370 October 20, 2022 WH Bozeman NWX 358 LLC ATTN: Mike Badner/Williams Homes 387 Gallatin Park Drive, Suite 102 Bozeman, MT 59715 Re: Ltr to Resolve COB Comments Re Potentially Impacted Water Rights and Agricultural Water User Facilities Northwest Crossing Subdivision Phase II Dear Mike, When we met with the City of Bozeman staff on October 12, 2022, he indicated that to satisfy comments related to water rights and agricultural water user facilities, WH Bozeman NWX 358 LLC needed to provide the City with documentation of compliance with Bozeman Municipal Code Sections 38.360.280 and, if applicable, 38.410.060. As I understood the City staff, the City relies on the developer to confirm it has done its due diligence to identify potentially impacted agricultural water users whose facilities might be impacted by a development project. Any potentially impacted agricultural water user must then receive notice of the development and opportunity to comment, as set forth in BMC 38.360.280. The purpose of this letter is to (1) outline the steps I took to identify potential agricultural water users whose agricultural water user facilities (i.e., ditches, culverts, pipelines) might be affected by the Northwest Crossing Subdivision Phase II (hereinafter “Project” or NWX PH II)) and (2) confirm which potentially impacted water users are required to receive notice and opportunity to comment in order to comply with BMC 38.360.280. Identification of Water Users. In Montana, all valid water rights are recorded in a publicly accessible centralized database maintained by the Montana Department of Natural Resources & Conservation (DNRC). See Bozeman Municipal Code 38.360.280(2)(d). To identify which water rights may be impacted by this Project I reviewed the NWX PH II development plans provided to me by you and Matt Ekstrom. I then searched the DNRC database for surface water rights: (1) owned by WH Bozeman NWX 358 LLC or NWX LLC; (2) with a Place of Use on the Project parcel (NE Section 4 T2S R5E); October 20, 2022 Page Two 4860-6724-5370 (3) with a Place of Use on parcels within 100 feet of the exterior boundaries of the Project property; (4) with a Point of Diversion on the Project parcel (NE Section 4 T2S R5E); (5) that identify Baxter Ditch as a means of conveyance; and (6) that identify Baxter Creek as a source. Potentially Impacted Water Users. From these searches I compared the results with available irrigation maps in the Water Resources Survey for Gallatin County and information on the Montana Cadastral Map. I determined the water rights that had the potential to be impacted by the Project were (1) those owned by Farmers Canal Company and (2) those owned by NWX, LLC. I confirmed that the water rights owned by NWX LLC have already been dedicated to the City of Bozeman as part of the approval of the Master Plan for Northwest Crossing Subdivision.1 Based on information publicly available to me at the time of this letter, the Project (NWX PH II) does not impact these water rights. To determine whether Farmers Canal Company water rights may be impacted by this Project, Matt Ekstrom, of Morrison-Maierle, met with a representative of the Company on-site on October 14, 2022. The purpose of that meeting was to discuss the proposed Project layout, including potential impacts to open ditches and culverts caused by the expansion of Baxter Lane west of Cottonwood Road. Mr. Ekstrom also visited with the farmer for the parcel of land located immediately north of the Project (Parcel I, COS 2553, Sec. 33 T1S R5E, Gallatin County) to understand if and how Farmers Canal Company contract water is delivered to Parcel I of COS 2553. During this on-site meeting, the Company representative confirmed the proposed expansion of Baxter Lane would not adversely impact delivery of Farmers shares to its members or delivery of water to Parcel I of COS 2553. The Company representative confirmed that the Company does not deliver water via Baxter Ditch, the open ditch that parallels Baxter Lane, or the existing culvert under Baxter Lane that will be removed as part of NWX PH II. However, since the Company and the owner of Parcel I, COS 2553 were identified as potentially impacted water users, I recommend that you send notice to the Company that comports with the requirements of BMC 38.360.280. Further, given the proximity of the Project to Parcel I, COS 2553 to the Project, I recommend that you also send notice to that landowner to provide them opportunity to comment about filling the open ditch and the removal of the culvert under Baxter Lane. Finally, since (1) Farmers Canal Company confirmed that it does not use the open ditch that parallels Baxter Lane or the culvert under Baxter Lane to deliver shares of its water and (2) NWX LLC’s water rights were dedicated to the City, the requirements of Bozeman Municipal Code 38.410.060(D) do not appear to apply to your Project. See 38.410.060(D)(5). 1 I could not find any record that the City of Bozeman has yet to sever these water rights from their historical places of use or filed Change of Ownership Forms with the DNRC. However, you provided me with documentation confirming the dedication of the NWX LLC water rights to the City during approval of the Master Plan. October 20, 2022 Page Three 4860-6724-5370 Please let me know what questions you have or if the City staff requires additional information or further explanation to resolve the City’s comments related to water rights and agricultural water user facilities. Sincerely, Abigail R. Brown Attorney at Law ARB/ao