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<br />, <br /> <br />March 9,2004 <br />Page 40f6 <br /> <br />. <br /> <br />7, Annual review of the O&M Plan, Proposed O&M Plan at &6, This condition is <br />unnecessary and burdensome, The USFS has already considered the major issues related to <br />operation and maintenance of a Ditch B~ll easement in its Proposed O&M Plan, <br /> <br />8, While the Proposed Easement, does not place a time limit on the Easement's <br />existence, it does provide for review of its conditions every 30 years, and the imposition of new <br />terms as conditions may warrant. Proposed Easement at &5, Under a 30-year review, the terms <br />and conditions could become so onerous as to render operation of the easement for agricultural <br />purposes infeasible, The USFS's actions would violate the Ditch Bill's direction that such <br />easements be permanent. <br /> <br />9, ' National Environmental Policy Act ("NEP A") Analysis, The USFS has suggested <br />that NEP A analysis is required in relation to the establishment of conditions prior to the issuance <br />of a Ditch Bill easement5, The Ditch Bill does not add to, or subtract from, the USFS's <br />regulatory authority, except as set forth in the statute, <br /> <br />AlthoughNEPA is one of the "applicable law[sJ" with which the USFS must comply, even if the <br />USFS's proposed conditions for Ditch Bill easements constitute discretionary "federal action", <br />the granting of the easement itself is non-discretionary, If the USFS is entitled to conduct a <br />NEP A review, it should be limited to a categorical exclusion which should result in a finding of . <br />no significant impact ("FaNS I") since the USFS is merely regulating rights-of-way already in <br />existence, <br /> <br />10, Endangered Species Act ("ESA") Regulation, Whether the USFS has authority to <br />reserve in the Proposed Easement the right to re-initiate consultation under Section 7 of the ESA <br />in the event a new species is listed or new critical habitat is designated, is also an issue, The <br />ESA is another of the "applicable law[sJ" with which the USFS must comply. If the USFS is <br />entitled to impose terms and conditions designed to protect federally listed, threatened or <br />endangered species, such terms may not cause a Ditch Bill easement to be terminated or render <br />its operation infeasible, Of special concern is whether the USFS may impose "bypass flows," <br />requiring water users to leave a portion of their water right in the stream to protect endangered <br />speCIes, <br /> <br />II. Requirement of Agricultural or Livestock Use, A Ditch Bill easement must be <br />"used solely for agricultural irrigation or livestock watering purposes" and that the easement <br /> <br />5 The Ditch Bill (43 U,S,C, ' l76l(c)(3)(B)) states as follows: <br /> <br />Nothing in this subsection shall be deemed to confer on the Secretary of Agriculture any <br />power or authority to regulate or control in any manner the appropriation, diversion, or <br />use of water for any purpose (nor to diminish any such power or authority of such <br />Secretary under applicable law), ," <br /> <br />. <br />