MOA Water Rights - Section 36MEMORANDUM OF AGREEMENT
ON
Allocation of water Rights Appurtenant to Section 36
Township 29 North, Range 22 'Vest, P.M.M., Flathead[ County, Montana
BETWEEN
CITY OF KALISPELL, MONTANA
.PUBLIC WORKS DEPARTMENT
AND
MONTANA STATE BOARD OF LAND COMMISSIONERS
DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION
TRUST LAND MANAGEMENT DIVISION
I. AUTHORITY
This memorandum of agreement (MOA) between City of Kalispell acting through the Public
Works Department (hereafter referred to as "City") and the Montana State Board of Land
Commissioners acting through the Department of Natural Resources and Conservation
(DNRC) Trust Land Management Division (hereafter referred to as "Trust Lands") is entered
into pursuant to Kalispell City Resolution No. 5270, A. Resolution Conditionally Approving
the Preliminary Plat of 'Timberwolf Center Subdivision, more particularly described as the
northeast Quarter of Section 36, Township 29 North, Lange 22 west, P.M.M., Flathead
County, Montana.
It. BACKGROUND
The DNRC submitted a preliminary plat for the Timberwolf Center Subdivision to the City of
Kalispell Planning Department. The Kalispell City Council adopted the Findings of Fact as
contained in the Planning Department Deport #KPP-08-1 and grant subdivision approval in
accordance with Resolution No. 5270 on March 17, 2008. This resolution contained 25
conditions that require conformance prior to filing the final plat of said subdivision in the
office of the Flathead County Clerk and Recorder. Condition 12 requires an allocation of
appurtenant water rights and establishment of a wellhead protection zone for the existing high
capacity well within the subdivision. The specific criteria of this condition provide. -
The water rights allocated to the developer (owner - DNRC), both surface and ground,
shall be transferred to the city to the fullest extent possible in compliance with applicable
statutes and regulations with the filing of the final plat of Phase lA, Lot 1, to insure the
orderly accounting of water rights and to protect the future water need of the City of
Kalispell for its users. A rectangular easement shall be provided along the south
boundary of phase IB, Lot 2 encompassing the existing well site. This easement shall be
large enough to contain a well house approximately 26 feet by 24 feet with due
consideration to the setback limits imposed by the zoning requirements. In addition
within the same easement, a clear space of 20 feet shall be provided around the well head.
A well head protection zone shall be provided and shown on the final plat of lots 1 and 2.
This well head protection zone shall meet the requirement of the Montana Department of
Environmental Quality Standards for Water Works DEQ 1, Paragraph 3.2.3 (February
24, 2006 Edition). (Findings of Fact, Section D).
III. PURPOSE AND OBJECTIVES
This MOA between the City and Trust Lands is entered into in order to explicitly fulfill
Condition 12 of Resolution No. 5270. The objective of this MOA is to facilitate an orderly
change of ownership of certain water rights appurtenant to Section 36, Township 29 North,
Range 22 west, P.M.M., Flathead County, Montana from 'Trust Lands to the City.
Iv. WATER RIGHTS APPURTENANT To SECTION 36
Water right 76LJ 25900-00 is a Statement of Claire. for 620 acre-feet (ac-ft) to irrigate 310
acres in the east half of Section 36; the associated pumping rate is 3,000 gallons per minute
(gpm). Sinlilarly, water right 76LJ 112585-00 is also a State of Claim to irrigate 310 acres
but for the west half of Section 36 with an associated volume of 620 acre-feet and at a
pumping rate is 3,000 gpm. DNRC sold 85.22 acres in the southwest corner of Section 36 to
a private party without transferring any of the water rights to that party. Therefore, the
irrigation water rights are appurtenant to the remaining 534.78 acres of Trust Land property.
The two water rights have a combined volume of 1,240 ac-ft. However, the DNRC has a
long-term lease with Kids Sports, Inc. for Area BC 1 (93.8 acres) and Area BC4 (28.1 acres).
A portion of water right 76LJ 25900-00 is used to irrigate the Kids Sports soccer, football,
and baseball fields. The fields consist of grass sod that is irrigated throughout the growing
season. The application volume associated with Kids Sports is 220 ac-ft/acre. Therefore, this
leaves a balance of 410 ac--ft on water right 76LJ 25900-00.
Both water rights have a priority date of March 15, 1972. In addition, both water rights utilize
the same point of diversion. (POD), which is a 400--foot deep well located in the N I/ , Sw /4,
NWI/ of Section 36. The period of appropriation for each right is April 1 to October 15, per
annurn. Therefore, the City will only be able to exercise this water right during the specified
period of appropriation.
N
v. BASIS OF ALLOC.A.TION
The DNRC originally developed the Spring Prairie Neighborhood Plan for Section 36 that
became a Planned Unit Development (PUD) overlay to comply with city zoning
classifications. The amended PUD overlay was adapted by Ordinance 1486 on December 15,
2003 and Section 36 has been annexed into the City of Kalispell with the exception of the 20
acres that are owned by Grosswiler Dairy, Inc. The three zoning classifications include mixed
commercial (B-5), mixed professional(R-5), and mixed residential (R-4). The various uses
associated with each zoning classification are contained in the Amended Spring Prairie PUD
Agreement.
Although Condition 12 is limited to the Tirnberwolf Subdivision, it was decided that it would
be in the best interest of both parties to include the remaining undeveloped parcels within this
section. The rationale for this decision was twofold: (1) the City will include the same
condition on future subdivisions as development proceeds; and (2) completing the change
processes now will reduce the number of applications from 11 to 1 change, which provides a
significant scale of economy. In addition, the basin is currently open to accomplishing this
process and could possibly change at some time in the future.
Applied water Consulting, LLC (hereafter referred to as AwC), was retained to establish
water volumes applicable to each of the three zoning classifications. The methodology used
to determine these appropriations is contained in a technical memorandum entitled:
Timberwolf Center Subdivision water Right Appropriation (AWC, September 9, 2008). The
following table provides a summary of the average use volumes calculated for each zoning
classification and the total volume for the entire 11 undeveloped parcels.
Table 6
Summar of Volume Calculations
Zoning Classification
Annual Volume
(acre-feet)
Mixed Professional (R-5)
356.40
Mixed Commercial (B-5)
112.45
Mixed Residential (R-4)
66.46
Total Annual Volume
535.31
As shown, the total annual volume for the change application from Trust Land to the City
would be 535.31 acre-feet. The flow rate from the well would be 1,525 gprn, which is the
balance not used by Kids Sports. In addition, Trust Lands has provided a rectangular
easement along the south boundary of phase 1 B, Lot Z encompassing the existing well site
and has established a 100-foot radial easement around the wellhead, which will be utilized as
the wellhead protection/control zone. This easement provides City access to the well for
future pumping and the protection/control zone is commensurate with the requirements set
forth in Montana DEQ Circular 1.
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VI, WORKING AGREEMENT
The Parties agree the following items will constitute the MOA:
1. Trust Lands agrees to the change of water right ownership as set forth herein and the
establishment of appropriate easements and well access to facilitate use of the well as
a public water supply source owned by the City of Kalispell. The water right change
will be in the amount of 535.31 acre-feet and the pumping rate will be 1,525 gallons
per minute.
2. Grant of Basement. Trust Lands hereby grants to the City a perpetual easement on,
over, and under the Trust Lands Parcel allowing the City use of such property as
follows:
to establish and .maintain a municipal water well in the southeast corner of the
Trust Lands Parcel;
to maintain water well facilities at such site (including without limitation a
well head, pump house, purification facilities, parking, etc.) within the
designated area of the Trust Lands Parcel;
to place and maintain an underground waterline and other utilities (along the
path described in this subparagraph), and to have vehicular and other access to
such waterline, utilities, and all other water well facilities along the northern
thirty feet of the Trust Lands Parcel from the western boundary of the Trust
Lands Parcel to a point 202 feet from the eastern boundary of the Trust Lands
Parcel, and from there along that boundary south no wider then 30 feet to the
water well facilities;
and otherwise restricting use of the Trust Lands Parcel as set forth below.
This easement shall be perpetual and shall run with the Trust Lands Parcel.
3. Restricted Uses. The uses of the Trust Lands Parcel within 100 feet of the wellhead
(Control Zone), described above, shall be restricted as follows:
A. Discharge. No person shall discharge, or cause, or permit the discharge of
regulated substances to the groundwater or surface water that may have a deleterious
affect on the groundwater in the City, unless the discharge complies with federal,
state, and local regulations.
B. septic Tank Systems. No septic system, wastewater disposal system, sewer
pipe, sewage lift station, French drain, or class V injection well, shall be located
within the Control Zone.
Ll
C. on -Site Sewage .Disposal. No person shall place, maintain, or operate on -
site sewage disposal from a septic tank or wastewater treatment plant within the
Control Zone upon any lot abutting any portion of any public street in which such
portion of such street a public sewer is laid. No person shall place, maintain, or
operate on -site sewage disposal such as a septic tank system within the Control Zone.
D. Petroleum Products. No person shall discharge any petroleum product(s),
treated or untreated, in the Control Zone.
E. Underground Storage Tanks. No underground storage tanks used to store
regulated substances may be installed in the Control Zone for any type of purpose.
F. .Dry Wells and/or Storm Water Detention .fonds. No person shall direct the
discharge of any regulated substance, directly or indirectly, into the groundwater by
the use of a dry well, detention pond, retention pond, or storm water swale within
Control Zone.
G. Solid Waste Disposal. It shall be unlawful to place or maintain any solid
waste disposal, transfer, or processing facility, or any hazardous material waste
disposal, transfer, or processing facility within the Control Zone.
H. Storage Containers. All regulated substances outside of the Control Zone
shall be stored in suitable containers to reduce the chance for the substances to be
accidentally introduced into the environment. These storage containers shall be
product -tight and shall be provided with secondary containment. Defective storage
containers shall be removed from service for repair or disposal in accordance with
local, state, and federal standards.
I. Secondary Containment. where secondary containment is required, it shall
be constructed of a material of sufficient structural integrity and composition to
contain the required volume of liquids and not be structurally weakened as a result of
contact with the discharge of the regulated substance to be contained. The material
shall be free of cracks, joints, gaps, or other imperfections that would allow leakage
through the containment material. This containment can take many forms such as
trays under containers, floor curbing or other systems designed to hold materials or
liquids that may discharge from containers holding regulated substances.
4. Landscaping. The City shall use natural landscaping in such a manner as to visually
shield the water well facilities from the remainder of the Trust Lands Parcel and
adjoining parcels so long as vegetation does not interfere with Trust Lands operations.
VI. EFFECT AND DURATION
This MOA is take effect upon signature of both parties and remain in effect for a period of
twenty (20) years or until full build -out of the designated parcels. This MOA may not be
amended nor can either party terminate participation in this agreement.
IN WITNESS THEREOF each party hereto has caused this Agreement to be executed
by an authorized official on the date set forth below.
STATE OF MONTANA
ss.
County of Flathead
On thist�r�ay of September, in the year ZoOB, before the undersigned Not Public
�' g �'
for the State of Montana, personally appeared Charles A. Harball, the Acting City Manager of
the City of Kalispell, Montana known to me to be the person whose name is subscribed to the
within instrument, and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year hereinabove first written.
f, SEAT I
otary Public, State of M ntana
Residing in AA" Al IK T
My commission expires: If o9ono/D
no
STATE OF VIONTANA
ss.
County of Flathead
On this /?7;11 day of September, in the year 2008, before the undersigned Notary Public
for the State of Montana, personally appeared A16- , known to me to be
the person whose name is subscribed to the within instrument, and acknowledged to me that
he/she executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the day and year hereinabove first written.
ISEAL)
7- 9 ez�_111 I
Notary Public, State of Montana
Residing in .4sP&.L-oar-
My Commission expires: 1
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