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<br />NEPA <br /> <br />. <br /> <br />Since Congress has decided under the Ditch Bill that the water diversion and transport facilities <br />will continue under the grant of a pennanent easement, ,the baseline environmental condition <br />under NEP A is that which exists with the facilities in place. That decision is not part of the <br />"Federal action" undertaken by the Forest Service in making a decision on the application. In <br />other words, the environmental effects' of the diversion and transport of water are not <br />consequences of the Forest Service action. <br /> <br />However; !!$ in the analysis under the ESA; the effects of water diversion and transport are' <br />relevantto the analysis of the effects of establishing terms and conditions for the easement. Those <br />effects are part of the cumulative impacts that must be considered under NEPA. 40 C.F.R. <br />91508.7. However, as with the analysis under the ESA, this requirement should not dictate the <br />. outcome of the decision; The Forest Service may not expressly or effectively deny the easement <br />when there is entitlement under the terms of the Ditch Bill, . <br /> <br />BothNEPA and the ESA require Federal agencies to analyze the consequences of their proposed <br />'actions, and consider those consequences in light of other things that may also be affecting the <br />environment, even if those other sources of impacts are outside the agency's control. While the <br />question posed is commed to the concept of environmental baseline, the implications raised go <br />beyond this fairly technical, procedural concept into questions of the agency's decision space, and <br />. the range of alternatives that should be analyzed. <br /> <br />The most important consideration is to maintain sufficient flexibility to design an analysis that is <br />adequate for the specific decision to be made. For example, the Forest Service does not have <br />authority under the Ditch Bill to unilaterally requirere-Iocation offacilities, which ordinarily <br />would exclude this option from the range of alternatives considered for establishing terms and <br />conditions for an easement. However, it may be that in some cases that such a significant <br />environmental advantage could be gained from re-locating a facility that it warrants consideration <br />as an alternative. Such alternatives could include (1) voluntary relocation by the 'owner ifit can be <br />shown to be in his or her advantage (i.e. its cheaper to move the facility than to mitigate the <br />effects of the facility in place); (2) Federal [mancial assistance to re-locate; or (3) a Federal buy- <br />out. <br /> <br />. <br /> <br />There is no cook book for the required analysis for these decisions. Considerable professional <br />judgment will be required based on the facts and circumstances of each case. As indicated in the <br />FSH, "[t ]he nature and scope of the proposed action will aid the responsible official in <br />detennining which interpretation is appropriate to the analysis." FSH 1909.15-92-1-14.1. The <br />"interpretation" referred to in theFSH is whether the no-action alternative includes the status quo, <br />or would modify the status quo by ceasing an ongoing activity or undoing a completed one. <br /> <br />With Ditch Bil~ applications, the status quo is that there is a water diversion and transport . <br />structure in place, that will be perpetuated. Circumstances wiIl dictate whether analyzing the <br />option of altering the status quo is warranted. <br /> <br />. <br /> <br />Page 9 of 14 <br />