BOARD00208

• Board Meeting Date: 3/16/2004
• Description: ISF Section - Federal Ditch Bill Easements and Associated Bypass Flow Requirements
• Board Meetings - Doc Type: Memo

Under this language it is clear that, unless otherwise provided for in the Ditch Bill, all rights-of- .
way issued imder the authority of the Ditch Bill are to be fully 'subj ect to FLPMA' s requirements
and, in twn, the Forest Service's implementing regulations. If the easement holders want the
benefit of the Ditch Bill, they take the easement subject to the requirements of FLPMA: At issue
ii the question as to what was "otherwise provided" for in the Ditch Bill as an exemption to those
requirements,

A reading of the Ditch Bill identifies several exemptions from FLPMA. The two primary
exemptions are that the easerrientsare to be issued free of any,fees and are to be of a permanent
duration, as long'as"the easements are used for agricultural irrigation or livestock watering;' - In
addition, to the original free grant of the permanent easement, the easements are t6 be fully'
transfera:ble to new owners with no new fees or terms and conclitions added at the time of
transfer. '

~

These two narrow exemptions from FLPMA are echoed iil the legislative report of the House'
Committee on Interior and Insular Affairs' which accompanied the Ditch Bill. This report
includes a section-by-section analysis of the Ditch Bill that explains the legislative language'
found in Section l76l(c)(3)(C) as follows: ,

, "
Except to the,extentthatthe text of the new subseCtion provides otherwise (e.g.,
as regards the open-ended duration of the new easements and their
exemption from the requirement for reimbursement), all the easements issued
pursuant to the new subsecti.on will be subject to the terms and conditions of
FLPMA and may be suspended or temlinated in accordance with the provisions of
Secti.on 506.ofFLPMA (emphasis added)?

.

The authority of the Secretary of Agriculture \0 issue regulations with respect to the terms and
conditions that must be included in rights-of-way issued to carry out the purpose of the FLPMA
are found in Section 504 ofFLPMA.3 In part, Section 504 reads:
, '

"(s)uch regulations shall be applicable to every right-of-way granted or issued
pursuant to this subchapter and to any subsequent renewal thereof, and may be
applicable to rights-of-way not granted orissued, but renewed pursuant to this
subchapter." ~ '

Ditch Bill rights-of-way are issued pursuant to the referenced subchapter and are subject to
Section 504 ofFLPMA.

2 H,R REP. NO, 99-554, pI. 1 at 5-6 (1986)

3 '
43 U;S,C, 1764

"

.

4
43 U,S,C, 1764(e)

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