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<br />'-'h "" <br /> <br />-2- <br /> <br />\ <br /> <br />Assistant Secretary for Environment and Natural Resources, Depending on the results of the <br />discussions with Mr. Cables, these recommendations could be effected concurrently. <br /> <br />. <br /> <br />A letter was sent to Mr, Cables by Ms, Sheftel, dated February 3, 2004; she received a response back <br />from Mr. Cables on February 23,2004, (Copies of these letters are attached as Attachment C,) Mr. <br />Cab}es accepted an invitation by the Board to appear at its March 2004 meeting to address the Ditch <br />Bill issue, He also agreed to meet prior to the Board meeting with Russell George, Executive <br />Director of the Department of Natural Resources and Rod Kuharich, Director of the Water <br />Conservation Board to explore possible strategies to resolve this issue and opportunities for the state <br />and Forest Service to work together in a collaborative fashion to address resource issues in general. <br />The meeting between Mr. Cables, Mr. George and Mr, Kuharich is scheduled for Wednesday, March <br />10,2004, A report to the Board on these discussions will occur on March 16 under this agenda item, <br /> <br />To date, Mr, Cables and his staff have been very responsive to the inquiries and requests ofthe state <br />and water users, It appears that Ms, Sheftel' s first concern over the four year lack of response by the <br />federal agencies has been addressed, The real challenge lies ahead in the resolution of the Ditch Bill <br />issues in a manner consistent with both state and federal law and in a malll1er that water users, the <br />state and the Forest Service can all support, <br /> <br />Additional Back2round Material <br /> <br />A copy of Public Law 99-545 is attached for you information (Attachment D), This law, which . <br />was approved on October 27, 1986, amends Section 501 of the Federal Land Policy and <br />Management Act of 1976 (FLPMA) by authorizing the Secretary of Agriculture to issue permanent <br />easements for water conveyance systems in order to resolve title claims arising under Acts repealed <br />by the FLPMA, and for other purposes. The Ditch Bill Easements to be issued under this law would <br />be pennanent easements guaranteed to owners of pre-l 976 irrigation ditches as an exception to <br />Special Use Permits under FLPMA. <br /> <br />Some time after the deadline for applying for Ditch Bill easements had passed, December 31, 1996, <br />a request for a legal opinion was made to the Office of the General Counsel by Paul Brouha, <br />Associate Deputy Chief of the Forest Service, concerning the Forest Service's authority to impose <br />conditions under the "Ditch Bill" amendments to FLPMA. The state was able to acquire a copy of <br />this legal opinion only after making a Freedom of Information Act request, being denied the request <br />initially, filing an appeal, and finally receiving a copy after the denial was overturned. A copy of the <br />transmittal letter and the legal opinion, known as the "Poling Ditch Bill Opinion" is attached <br />(Attachment E). <br /> <br />Attached are copies of two Ditch Bill easements (Attachment F), One issued shortly after the <br />application deadline referenced above had passed and the other a blank easement form which <br />triggered the concern of ditch bill applicants across the state due to its tenns and conditions, <br />Apparently, Ditch Bill easements issued early in the process contained few if any of the <br />controversial terms and conditions. <br /> <br />. <br /> <br />Finally, included is a copy of the Discretionary Review Decision issued by David TeIll1Y, Deputy <br /> <br />Under Secretary for Natural Resources and Environment, USDA, regarding the Arapaho and <br /> <br />Flood Protection. Water Project Planning and Finance. Stream and Lake Protection <br />Water Supply Protection. Conservation Planning <br />