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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National Forest System Jandsfor irrigation purposes. Conversely, the Ditch Bill cannot be read in .
any 'manner to diminish any power or authority the Secretary may have under other applicable
laws to reserve, acquire, or use water. To the extent the Secretary previously had the authority
under other federal laws, including Section 505 ofFLPMA, to impose bypass flow requirements
the Secretary retained this authority, This is emphasized by the language in the Ditch Bill which
expressly states tha/easements issued pursuant to this tenus are subject to all FLPMA tenus and
conditions, except for length oftenu and fee waiver. . .

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The legislative history clearly illustrates that the committee did not intend to,give create new
authority to regulate instream'flows merely by passage of the Ditch BiIl;-but it can not be' read to
disclose an intention to limit that authority in the Secretary if it already existed in otherIegislation,
most notably FLPMA.The kgislative history reads:

Subparagraph 3(B) of the new subsection which would be added to Secti.on 50Iof
... FLPMA is an explicit disclaini.er of any intention that the new subsection assert a federal
right or claim with regard to the reservation, acquisition, or use of' water. Similariy, the
. Committee does not intend that the enactment of this bill interfere with or restrict the.
manrier in which the various States provide for establishing or regulating rights to put
. water to beneficial uses. Nothing in this biIlis.intended to .estabIish a.basis forfedera"J
decisions affecting the timing of water delivery 0.1' the amount ofwater to be released
through a water conveyance system. In its drafting of the Committee amendment, the
. Committee intend'ed to avoid any implication that a federal land manager was tobe
given, through this legislation, authority to regulate such matters as in-stream flows .
or the appropriation, use or diversion of water - matter which are entirely outside
the scope of this legislation.(emphasis provided).9 .

This interPretation of the impact of the Ditch Bill on the federal ability to establish minimum
stream flow requirements as a term and condition of the easement is consistent with the agency
inteI]Jretation of the Ditch Bill at the time the Ditch Bill was passed. In a letter to Regional
Foreste.rs from Larry D. Henson, Associate Deputy Chief of the Forest SerVice, dated December 5,
1986, Mr. Henson enclosed a copy of "Questions and Answers relating to the Act of October 27,
1986,". One of the questions posed was whether an easement issued under the Ditch Bill would be
subject to any minimum stream flow requirements. The agency response to this question reads:

The Act did nol.affect Forest Service authority to impose this requirement. If
. necessary, the easement may specifY instreain flows; both maximum arid minin:mm
to protect the environment.

It has long been the position of the Forest Service and the Office of the General Counsel that the
Secretary of Agriculture has authority to impose bypass flows if necessary to protect Nati"onal

.

9H.R. REP. No. 99-554,pt. 1, at 5-6 (1986).

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