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<br />March 9,2004
<br />Page 5 of6
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<br />"shall terminate if the water system for which such easement was issued is used for any purpose
<br />other than agricultural irrigation or livestock watering use," See 43 U.S,C, ' , l76l(c)(1)(B) and
<br />(c )(3)(A),
<br />
<br />At the time of passage of the Ditch Bill, the Colorado Water Congress, among others, was
<br />concerned that these provisions would adversely affect Ditch Bill easement holders because
<br />many ditches through national forests are used by mutual ditch companies whose shareholders
<br />may transfer shares to non-agricultural entities, such as municipalities,6 The concerns were that
<br />such a transfer might cause the Ditch Bill easement to terminate and that the Department of
<br />Agriculture (the "Department"), which has authority to administer rights-of-way under the Ditch
<br />Bill, might require FLPMA re-permitting of rights-of-way vested under the old statutes, such as
<br />the 1891 Act, if the end use changes to a non-agricultural use,
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<br />Despite these concerns, the ranchers who supported the Ditch Bill, as well as the Congressional
<br />committee considering it, did not want to delay the Bill's passage since the Congressional session
<br />was nearing its end, Therefore, the sponsoring Congressmen incorporated a letter from Douglas
<br />MacCleery, Department Deputy Assistant Secretary of Natural Resources and Environment
<br />("MacCleery Letter"), into the Congressional Record, and conditioned their support of the Bill
<br />on the commitments made in the MacCleery Letter listed below,
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<br />A. A change in the end use of water under a Ditch Bill easement would not
<br />cause the use of the right-of-way to cease, but Ditch Bill easements would automatically be
<br />converted into permits under FLPMA. We are not aware of the USFS having adopted such
<br />procedures, Such procedure, however, would give little comfort to a shareholder who loses his
<br />Ditch Bill easement because of the action of another shareholder in the ditch company, We need
<br />Department assurance, through language in the Ditch Bill easement, that the easement will not
<br />terminate if used for incidental domestic use,
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<br />B, Since the Department is committed to not reqUITIng re-permlttmg of
<br />rights-of-way under the old statutes upon a change to non-agricultural use7, this spirit should also
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<br />6
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<br />The USFS may require co-tenants in a ditch to each obtain separate easements, in which case
<br />a forfeiture of one easement for unauthorized use should not effect the easements of the other co-tenants,
<br />With mutual ditch companies, however, the company generally owns the assets, including any rights-of-
<br />way, and the water users own stock in the company, If a Ditch Bill easement is issued to a mutual ditch
<br />company, any forfeiture of such easement for improper use of water would impact all of the shareholders
<br />in the company,
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<br />7
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<br />[W]e do not assert that pre-FLPMA rights of way for water conveyance and storage sys-
<br />tems must be subjected to a repermitting process, The Department recognizes that
<br />long-standing uses ought not be diminished by insignificant defects in surveyor
<br />description made many years ago, or a change in the end use of the water off the
<br />Federal lands,
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