BOARD00208

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

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Section 505 ofFLPMA also pertains to ,Ditch Bill easements, It identifies terms and conditions
which must be in every right-at-way to protect the public lands. This section reads:

Each right-of~way shall contain',

(a) tenn and conditions which will (i) carry out the purposes of this Act
'and rules imdregulations issued thereunder; (ii) minimize damage to scenic and
esthetic values and fish and wildlife habitat and otherwise protect the
environinent; (iii) require compliance with applicable air and water quality
standards established by orpursuantto applicable FederaJ. or StateJaw;and (iv)
require compliance with State standards for public health and safety,
environmental protection, and siting,constniction, operation; and maintenance of
or for rights-of-way fat similar purposes if those standards are more stringent than
applicable Federal standards; and

, (b) such terms and conditions as the Secretary concerned deems necessary
to (i) protect Federal property and economic interests; (ii) manage efficiently the
lands which are subject to the right-of-way or adjacent thereto and protect the
other lawful users of the lands adjacent thereto or traversed by such right-of-way;
(iii) protect lives and property; (iv) proteCt the interests of individuals living in the
general area traversed by the right-of-way who rely on the fish, wildlife, and other
biotic resources of the area for subsistence purposes; (v) require location of the
right-of-way along a route that will cause least damage to the environment, taking
into consideration feasibility and other relevant factors; and (0) otherwise protect
the public interest in the lands traversed by the right-of-way or adjacent thereto,'

The regulations implementing Section 1761 ofFLPMA are found in 36 C,F.R. Part 251, Subpart
B-Special Uses, 99251.50 to 251.56. These regulations declare that all uses of National Forest
System lands, improvements, and resources (except for certain uses not applicable here) are
"special uses" and require a "'special uses authorization.'" The regulations expressly apply to
pennits, leases, and easements for ditches and other water conveyance systems issued under.
FLPMA.7 ' '

The periodic review requirement for long term FLPMA easements is found in 36 C,F,R.
9251.56(b), This regulation specifically requires that all special use authorizations exceeding 30
years, except for those issued under the National Forest Ski Area Permit Act of 1986 (which can
not exceed 40 years),. '.'shall provide for revision of terms and conditions at specified intervals to

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43 U,S.C, g1765

636 C,F,R. g251.50(a) and 251.51

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36 C,F,R, g251.53(1)(l)

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