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<br />" <br /> <br />reflect changing times and conditions," We understand this regulation to establish; in effect, 30 ',. <br />years as the maximum periodic interval for review and possible revision of terms and conditions, <br /> <br />Ditch Bill easements exceed 30 years and are special use authorizations as defined by the <br />regulations, There is no inherent conflict between a permanent easement required by the Ditch <br />Bill and the requirement of36 C,F,R.S 251.56(b) to periodically modify terms and conditions of <br />the easement. We note that the FLPMA regulations, at Section 251.530), also' specifically cover <br />permanent easements under the Act of October 13, 1964 (the National Forest Roads and Trails ~ <br />Act; 16 U,S,C. 532-538) and do not exempt such easements from periodic review: There is no <br />exemption in the Ditch Bill or in ,its legislative history that,wouldpreclude application:'ofa re-: " ' <br />opener provision per se. Accordingly, the, terms and conditions in Ditch Bill easements must be <br />reviewed, and possibly revised, at periodic intervals (not to exceed 30 years);to reflect 'changing' <br />times and conditions, <br /> <br />~ <br /> <br />Question #lB: If you concur with this opinion, are there any legal considerations we should <br />be aware of in establishing 'a "re-opener" clause (i.e., a point in time to review, and possibly <br />, , revise, the terms and conditions of the easement)? Are there any legal concerns we should <br />be considering in using language in an easement that would not only allow us to review (and <br />pos,sibly' revise) its terms and conditions at regular intervals in time (every 20 or 30 years), <br />and/or when there is a change in environmental conditions (e.g., the federal listing of a new <br />species as threatened or endangered pursuant to the ESA)? <br /> <br />Answer: The discretion the Forest Service has t6 impose new terms and conditions atperiodic . <br />intervals is the same discretion the Forest Service has in the first instance to impose terms and <br />conditions on the Ditch Bill easement. How often the Forest Service reviews these terms and <br />conditions is subject to the discretion of the Forest Service and to'the requirements of the law and <br />implementing regulations. The Forest Service could review and revise terms and conditions either <br />at regular intervals and/o(when there is a change in environmental conditions, such as the federal <br />listing of a new species as threatened or endangered, as long as 'such review occurs at least once <br />every 30 years. ' <br /> <br />Issue #2 - Environmental Baseline <br /> <br />Question #2A: Do you concur that the extent of Forest Service discretionary authority under <br />the Act is limited' to operation and maintenance of the facility? <br /> <br />Short Answer: The Forest Service's discretionary authority does 'hot include whether or not to <br />grant the easement or whether or not to allow the physical Water delivery system to remaln on <br />N ationa! Forest System lands. The easement granted must be permanent and ~either fees nor new <br />conditions can be imposed when the easement is transferred, The scope of discretion does <br />include development of any other terms and condition of the easement that meet the purposes set <br />out in FLPMA.. These may be, for the most part, related to the operation and maintenance of the <br />facility, but only the agency, in light of specific facts for a particular situation, can determine if <br />other matters fall within the agency's discretion. <br /> <br />. <br /> <br />Page 5 of 14 <br />