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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Discussion:

As previously discussed, the grant of a Ditch Bill easement 1s nondiscretionEll)' if the enwnerated
conditions are met. However, the Ditch biII also specifies that Ditch Bill right-of-ways are subject
to FLPMA unless "otherwise provided," ,This would subject Ditch Bill right-of-ways to Section
505 of FLPMA, which requires mandatory terms and conditions to protect theenvirorunent and
aquatic resources, Thus, while it is accurate to state that the scope of the Forest Service discretion
does not include whether or not to grant the easement, or whether or not the physical water
delivery system consisting of the pipelines, can411:kdiversion structures should be allowed to
remain on federal lands, the scope of discretion does include development of any"othei' terms and., _ ,
conditions of the easement that meet the purposes set out in FLPMA, aslong as the term or
condition is not prohibited by the Ditch Bill. As such, the Forest Service discretionEll)' authority
,includes "operation and maintenance", of the facility, but also extends to the establishment of
original terms and conditions on the Ditch Bill easement that are not expressly prohibited by the
Ditch Bill.

Question #2B - If so, what legalimplication does this have for the environmentalbaseline
used to conduct the analysis? (i.e., Is the environmental baseline the condition which has
existed during the time period when the facility has been in operation?)

Short Answer:, The definition, and significance, of the term "baseline condition" varies between
the Endangered Species Act (ESA) and NEP A. Even though the 'envirownental effects of having
the water system in place may not be a direct consequence ofthe Forest Service "action" to
develop terms and conditions of the easement, the effects of the water system must be analyzed
and considered to meet the requirements ofNEP A and:the ESA" '

Discussion:

NEPA

NEP A imposes the requirement for preparation of an envirownental impact statement when there
is "major federal action significantly affecting the quality of the hwnan envirorunent." 42 U,S,C.
S4332(2)(C). For there to be major federal action, there must be some exercise of federal agency
discretion involved, Where the federalactiori is nondiscretionEll)'"there is no major'federal action,
State of South Dakota v. Andrus, 462 F, Supp. 905 (D,S ,D. 1978), affd. 614 F,2d 1190, cert"
denied 101 S.Ct. 80. (Grant ofmineral patents is nondiscretionEll)' so no envirownental impact
statement is required,) Consequently, if the grant of an easement for ditches is entirely'
nondiscretionEll)'" there would be no requirement to prepare a NEP A docwnent.

While the grant of the easement, and its location, may be nondiscretionEll)', the Forest Service still
retains discretion as to whether to impose terms and conditions for the exercise of the easement,
and to determine what those terms and conditions should be, Accordingly, the issuance of a Ditch
Bill easement is notexerript from NEPA on the basis that it requires no federal action.

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