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HomeMy WebLinkAbout023 - Appendix K - Maynard Ditch Correspondence MW Law PLLC 777 E. Main, Ste 205 Bozeman, Montana 59715 mattheww53@aol.com (406) 551-6169 Matthew W. Williams December 4, 2020 Brian Heaston City of Bozeman bheaston i bozenian.net Re: Delaney/Maynard-Border Ditch Dear Mr. Heaston, Please let me introduce myself as an attorney for Mike Delaney. Mike reports that your office is considering treating the Maynard Border Ditch as a stream. As Mike is well into the review process for his development,this news was alarming, as of course it significantly changes the regulatory context. I have reviewed the relevant ordinance, and the underlying factual context, and can find no basis for a determination that equates the Maynard-Border Ditch with a watercourse. Under the applicable ordinance, watercourses do "not mean any facility created exclusively for the conveyance of irrigation water or stormwater." The Maynard Border Ditch is a lateral developed to take water from the Farmers Canal. The Farmers Canal appropriated water for the irrigation of its shareholders' lands. Consequently,the Maynard Border Ditch is a 1 facility created exclusively for the conveyance of irrigation water, in this case, irrigation water from Farmers Canal appropriations. I infer from your emails that you find this interpretation of the ordinance too literal. However, reading statutes and ordinances for what they say is the rule in interpreting their reach. One must interpret a statute as it finds it, and not insert what has been omitted, or omit what has been inserted. Montana Trout Unlimited v. DNRC, 2006 MT 72, ¶23, 331 Mont. 483, 133 P.3d 224; MCA 1-2-101. In any event, I infer from your emails that you have some concern that the statutory language excluding ditches created for irrigation from the reach of the ordinance may not apply if the ditch is a stream/ditch, or what you sometimes refer to as a hybrid. We need not resolve this concern, because there is nothing in the Maynard Border Ditch that Farmers does not put there, and accordingly no part of the water in that Ditch is naturally occurring. Because any concept of a hybrid ditch presumes that there is some naturally occurring water flowing in a ditch, it follows that the absence of such natural accretions leaves a ditch as a ditch. I agree with you with you that there is water in the Ditch year-round. I disagree, however, that there is any fact showing that these flows in the Ditch would exist if the headgate on the Ditch from the Farmers Canal was shut. After the cessation of Farmers' irrigation diversions down through the Maynard Border Ditch, Farmers leaves the headgate open slightly the remaining portion of the year. It does this in order to accommodate Dayle Kountz,who otherwise has no stockwater available for his lands. Mr. Kountz developed a stock pond approximately one-quarter mile down the ditch, and Farmers tries to let enough water go to keep that stock pond filled. The headgate has to stay partially open to make this happen, as otherwise the Ditch would be dry. I attach a letter from the Canal Manager and the ditch rider that confirms this history. I do not know under what authority Mr. Kountz is using water in this fashion. I did review his water right claims, apart from those arising incident to rights as a shareholder in the Farmers Canal Company. In the 1950's his predecessors developed some drain ditches on their lands. Of course, at that time, the Farmers Canal already existed. The drain ditches are primarily upgradient of the Canal, although some are below. You can see these rights on the DNRC website, and view the location of the drain ditches in the underlying statements of claim. They are west of the Maynard Border Ditch. The water rights claim an entitlement to water stock directly from the drain ditches. I do not know how much water if any remains in the drain ditches as groundwater levels have receded in the last decades with the atrophy of flood irrigation and its substantial return flows. However, resolving this question, or the question of legal entitlements within the Maynard Border Ditch, is not important to the issue of whether the Ditch is a watercourse. 2 Your definition of a watercourse in your ordinance requires that at least some of the water in a facility be "naturally occurring." Water is not natural occurring where it wouldn't exist absent human intervention. As all the water in the Maynard Border Ditch is dependent on continued diversions from the Farmers Canal,the Ditch can't be a watercourse. I request that you treat the Maynard Border Ditch as the ditch it is. Irely, 1 Matt Wi iams 3 To whom it may concern, There seems to be some confusion over whether the Maynard Border ditch is an irrigation ditch or a live stream. It is my opinion, and that of my fellow FCC Directors and water users, that said ditch is an irrigation conveyance facility, and not a live stream. It would maybe appear to be a stream, but that is because there is a small amount of stock water flowing in it, at the request of the Kountz family, who are FCC stockholders. This small amount of water is controlled by the canal manager, Mr. Harry Marx, by means of a headgate at the canal. I spoke with Mr.Marx last evening, and he informed me that he had shut the water off tight recently to dry it up so that a culvert could be installed in the ditch near Babcock Street. After that was done, at the request of Robbie Kountz, water was turned back into the ditch for stock water. Feel free to contact one of us if you have questions. Farmers Canal Company of Gallatin County Dan Triemstra, Secretary /a0 O 406 581-8714 danbevtkgmail.com Harry Marx, Canal Manager 406 599-6260 h.marx@hotmail.com