WSP08562

• File Number: 8149.700
• Description: Miscellaneous Small Projects and Project Studies - Homestake Project
• State: CO
• Basin: Arkansas
• Water Division: 2
• Date: 5/16/1983
• Author: USDA Forest Service
• Title: Record of Decision for Homestake Phase II Project Final Environmental Impact Statement
• Water Supply Pro - Doc Type: EIS

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III. SPECIAL USE APPLICATION PROCESS AND ENVIRONMENTAL REVIEW

The Special Use Application submitted under the Federal Land Policy and
Management Act (FLPMA), as supplemented by materials obtained by the Cities
during the NEPA review (FEIS Section 6.1, page 6-1), has been examined and
contains the materials required by 36 CFR 251.54(e). After the close of
the public comment period on the DEIS, a question was raised by the Vail
Valley Consolidated Water District regarding the adequacy of the appli-
cation of the Cities under 36 CFR 251.54(e). The application process began
when the Cities submitted initial materials on June 19, 1981; the FLPMA
application for an easement was submitted on January 12, 1982. Throughout
the review of the Cities application, the Forest Service has continually
requested and received additional information upon which to base a decision.
A list of the materials which have been obtained from the Cities in order
to comply with 36 CFR 251.54(e) is attached as Exhibit 8. A complete set
of these materials may be reviewed at the White River National Forest
Supervisor's Office. The Forest Service will continue to receive informa-
tion from the Cities on the administration and operation of the Phase II
Project.

While the Cities are proceeding with their application to the Forest Ser-
vice for a right-of-way under FLPMA, the Cities have reserved the right to
seek an amendment under 43 CFR 2802(1979) to their unbuilt 1962 right-of-way
issued by the Department of the Interior under 16 USC 524. The Tenth
Circuit U.S. Court of Appeals held in Denver v. Berglund 695 F.2d 465,
481(1982) that grants issued under 16 USC 524 could be amended under the
Department of the Interior regulations for the 1905 Act even after the
effective date of FLPMA, which repealed the 1905 Act. The Cities have
written a letter to the Bureau of Land Management (BLM) reserving the right
to request an amendment and the BLM has responded (Exhibit 2).

I am making a decision on the Cities FLPMA application, as it has not been
withdrawn. The Cities will have sixty days from the receipt of this ease-
ment to accept (36 CFR 251.62). As a condition of this FLPMA easement the
Cities will be required to relinquish the unbuilt 1962 easement issued
under the 1905 Act. If the Cities reject the FLPMA easement they may apply
to BLM for an amendment to their 1962 easement.

The FEIS contains revisions of the Draft Environmental Impact Statement
material. These revisions were occasioned by the comments of the public,
groups, and Federal, State, and local agencies on the DEIS, and the public
meetings held on the DEIS. Additional data or better information which
were obtained during the review period have been incoporated into the FEIS
(FEIS Section 6.2.1, pages 6-8 to 6-361). The Cities' proposal for land
use has not changed; however, as required by NEPA and in response to the
public comments on the DEIS, the alternatives have been modified and the
discussion of impacts, effects, and features of the proposed action and the
alternatives have been expanded.

Comments received during the preparation and review of the DEIS for this
proposal suggested that the Forest Service delay its Federal decision
regarding the easement application until State water planning has been

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