BOARD00208

• Board Meeting Date: 3/16/2004
• Description: ISF Section - Federal Ditch Bill Easements and Associated Bypass Flow Requirements
• Board Meetings - Doc Type: Memo

November 17, 2003
Page 2 of2

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easement comments from 1999, but received no response, I have called appropriate Washington
DC USFS representatives over ten times and have not received any return calls,

In the meanwhile, the USFS in the San Juan National Forest has required a 3,0 cfs bypass flow
from the Pagosa Area Water and Sanitation District as a precondition for a Special Use Permit
for a waterpipeline to replace a ditch and is requiring a 3,0 cfs bypass for restoration work in the
Dutton Ditch by a client entitled to a Ditch Bill easement.

We suggest two approaches to resolve the issue, Perhaps CWCB board members will have
additional ideas,

1. Obtain support from the Department of Natural Resources for a face-to-face
meeting with USFS officials in DC about the issues,

2, We believe the USFS is awaiting results of bypass flow cases in the 9th Circuit
(Washington State) and in the 10th Circuit Trout Unlimited's case in Wyoming District Court
regarding the Arapaho National Forest. These cases, however, are Special Use Permit cases, not
Ditch Bill easement cases, We would suggest the Attorney General's office research the
potential for different arguments against bypass flows in the case of a Ditch Bill easement and, if
a different case can be made, suggest "friendly" litigation with the USFS to settle the Ditch Bill
bypass flow issue, No bypass flow language would be allowed in Ditch Bill easements awaiting
the results of the litigation,

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Respectfully submitted,

MAYNES, BRADFORD, SHIPPS & SHEFfEL, LLP

Janice C, Sheftel

JCS:sps
cc: Ditch Bill Committee
Greg Wa1cher
Frank McNulty
Carol Angel

H:\sps\SWWB\Ditch Bill\Schwindt memo.doc3/9/04

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