Post by leokeeler on Nov 29, 2015 19:41:46 GMT
NOTE: Changes in the Declaration language are denoted with BOLD italics (new language) and strikethrough (removed language.)
GovDocCmte Notes: Section 5.11 is under the jurisdiction of the Montana DEQ. The Covenants do not have the level of authority to extend to the GLA power over water rights. Section 5.12a is under the jurisdiction of the Montana DEQ. The Covenants do not have the level of authority to extend to the GLA power over spring water rights. Section 5.12d is under the jurisdiction of the Montana DEQ and adds a liability to the GLA that is unnecessary, since the official well records can be found on a Montana website. Section 5.13 mineral rights are governed by a higher authority than the Covenants, further, the GLA doesn’t have the right to allow “noncommercial use of any of the minerals existing within six (6) feet of the surface.”
Lawyer input: Added clarifying language to “5.12 Subsurface Water Use” since the original language was not that clear or specific.
5.11. Surface Water Use. Except for any existing surface water rights and permits as of the effective date hereof, Landowners may not newly appropriate or use the surface water on a parcel without the prior approval of the Association. All appropriations and use of surface water shall be in accordance with state law and shall be subject to all prior valid rights.
5.12 5.09. Subsurface Water Use. Landowners are entitled to appropriate and use subsurface water by drilling wells in accordance with state law.
a. Spring development may only be made with the approval of the Association and must be made from an underground water source or aquifer, or at the point of discharge, from within the parcel. Others may have already appropriated and reserved certain spring water or spring-fed surface water for irrigation, stock water, and other uses. Such spring water may not be appropriated or used by a Landowner without approval of the owner(s) of such water rights.
b. If the Association determines that a scarcity of water exists, it may implement a water use plan to remain in effect for the duration of the scarcity. In such an event, a use priority shall be given to the necessities of life, and all Landowners shall be required to abide by the terms of such a plan.
c. Any parcel in the Community which does not have sufficient ground water available to supply the needs of at least one dwelling (a “dry parcel”) may, as a matter of right, obtain ground water from the most appropriate neighboring parcel. To establish such a right, the Landowner of the dry parcel must have tried and failed to drill a well on his own parcel through a commercial driller at least two times and must submit the results of a study to the Association, such as by a qualified geologist, electro-seismic survey and or a dowser’s report, if requested, showing the likelihood of no water on his parcel and the likely location of ground water on a neighboring parcel. The Association shall arbitrate any disagreements between the Landowners of a dry parcel and a neighboring parcel in the allocation of ground water, and its decision shall be final and binding. In addition, the Landowner of the neighboring parcel to be used shall have the option of:
i. Sharing his existing well or a planned common well with the dry parcel; or
ii. ii. Requiring the Landowner of the dry parcel to drill his own well, which well must be located as close as is reasonably possible to the common boundaries of the parcels or in a location preferred by the owner of the neighboring parcel.
If a common well is shared, the Landowner of the dry parcel must pay his fair share of all reasonable expenses incurred in the establishment of such well and all costs associated therewith. All necessary and reasonable easements for placing and maintaining any such well and transporting said water to the dry parcel shall be given by the owner(s) of the neighboring parcel.
d. Each Landowner that successfully drills a well is required to provide the Association with a report that states the location, depth, flow, quality and cost of the well. A similar report is required for drilling operations that fail to produce a well. This information will be kept in a well log by the Association for inspection by prospective purchasers and other Landowners.
GovDocCmte Notes: Section 5.11 is under the jurisdiction of the Montana DEQ. The Covenants do not have the level of authority to extend to the GLA power over water rights. Section 5.12a is under the jurisdiction of the Montana DEQ. The Covenants do not have the level of authority to extend to the GLA power over spring water rights. Section 5.12d is under the jurisdiction of the Montana DEQ and adds a liability to the GLA that is unnecessary, since the official well records can be found on a Montana website. Section 5.13 mineral rights are governed by a higher authority than the Covenants, further, the GLA doesn’t have the right to allow “noncommercial use of any of the minerals existing within six (6) feet of the surface.”
Lawyer input: Added clarifying language to “5.12 Subsurface Water Use” since the original language was not that clear or specific.
b. If the Association determines that a scarcity of water exists, it may implement a water use plan to remain in effect for the duration of the scarcity. In such an event, a use priority shall be given to the necessities of life, and all Landowners shall be required to abide by the terms of such a plan.
i. Sharing his existing well or a planned common well with the dry parcel; or
ii. ii. Requiring the Landowner of the dry parcel to drill his own well, which well must be located as close as is reasonably possible to the common boundaries of the parcels or in a location preferred by the owner of the neighboring parcel.
If a common well is shared, the Landowner of the dry parcel must pay his fair share of all reasonable expenses incurred in the establishment of such well and all costs associated therewith. All necessary and reasonable easements for placing and maintaining any such well and transporting said water to the dry parcel shall be given by the owner(s) of the neighboring parcel.