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<br />, <br /> <br />.1 <br /> <br />. <br /> <br />. <br /> <br />requirements of this Act." 43 V.S.C. SI761(c)(3)(C). Accordingly, we believe that consideration <br />must be given to the purposes of the Ditch Bill easement to determine whether there are <br />limitations "as otherwise provided" in the Ditch Bill on the Secretary's general conditioning <br />authority under FLPMA. The purpose cifthe Ditch BiIleasement can fairly simply be stated as <br />.securing for the holder a permanent right-of-way for a water collection and conveyance system, <br />which system was prior to and following October 21, 1976, in continuous use, solely for <br />agricultural irrigation or livestock watering uses off of the national forests pursuant to a valid" <br />State-law water right. The effect of the phrase, "(e)xcept as otherwise provided in this <br />subsection," may be seen as limiting the FLPMA conditioning authority of the Secretary so that <br />the requirements of a particular condition do not entirely preclude the easement holder's <br />agricultural irrigation or livestock watering use. For example, if the Forest Service were to <br />require theeasenient holder to leave a certain amount of water in a stream and that can be done <br />without entirely precluding the holder's agricultural or livestockwatering uses, then the bypass <br />flow requirement is not liniited by the Ditch Bill. This may be possible to achieve .dueto the . <br />timing or duration of the requiIement in relation to the period in which the holder has a right to <br />divert or store water. However, if the condition requires the .holder to relinquish their water. <br />diversion to the extent that the agricultural irrigation or stock water uses are entirely precluded, <br />the condition would be beyond the FLPMA authority preserved for the Secretary by the Ditch Bill. <br /> <br />Given this uncertainty; along with the legal maxim that bad facts' make bad litw, it is partiCularly. <br />incwnbent upon the Forest Service to impose bypass flows judiciously and only when warranted <br />by the facts of the case. The necessity for the flows, and the resource objectives served by <br />imposing the flows, should be well-documented in the administrative recbrd of the easement <br />. process. Bypass flows should be used in Ditch Bill easements only when legitimate, well- <br />documented needs are present and with due consideration of the effect of such conditions on the <br />purposes for which the easement is being provided. <br /> <br />cc: Jack Craven, FS Lands <br />Lois Witte, OGe, Denver <br />Ian Poling .. <br />Michael Glppert <br />Stuart Shelton <br />E-chron <br /> <br />Page 140f 14 <br />