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March 9,2004 Page20f6 . requirements of FLPMA which are not inconsistent with the Ditch Bill2, FLPMA repealed old rights-of-way statutes, but did not terminate valid rights-of-way established under the old statutes, Over 100 water users within the San Juan National Forest applied for Ditch Bill easements, The U. S, Forest Service (the "USFS") drafted a proposed easement (the "Proposed Easement") and a proposed operations and maintenance plan ("O&M Plan") which impose conditions on the exercise of the Ditch Bill easement. The San Juan National Forest was selected as the "guinea pig" for issuance of the Proposed Easement and O&M Plan, The attomeys for the Southwestern Water Conservation District obtained the help of attorneys throughout the state, under the auspices of the Colorado Water Congress and responded to the USFS with lengthy comments on. the Proposed Easement and O&M Plan, The terms of the Proposed Easement include two terms not previously imposed on Ditch Bill easement holders: a reservation of authority to re-initiate consultation under Section 7 of the Endangered Species Act in the event a new species is listed or new critical habitat is designated, and a requirement for review of the terms and conditions of the Easement at the end of each 30- year period, with the incorporation of new terms in the Easement as conditions may warrant. Additionally, the USFS has stated that some environmental analysis under the National Environmental Policy Act is necessary in relation to the imposition of its proposed terms and conditions, . II. CONCERNS REGARDING PROPOSED EASEMENT AND O&M PLAN Under FLPMA, the USFS is to impose conditions on all rights-of-way to protect the environment, scenic and aesthetic values, fish and wildlife, public health and safety, and the public interest ("Public Values,,)3 While reasonable regulations related to these purposes may be upheld by a court, such regulations cannot render the Ditch Bill easement impermanent, require fees, or require additional terms and conditions at the time of the transfer of an easement. In addition, the USFS may have authority to impose terms and conditions, consistent with the purposes of national forests, pursuant to the Organic Administration Act of 1897.4 2. See 43 U,S,C, ' l76l(c)((3)(C) ("Except as otherwise provided in this subsection, all rights-of- way issued pursuant to this subsection are subject to all conditions and requirements of this Act [FLPMA],"), 3 See 43 U,S,C, ' 1765, 4 See, e,g" 16 U,S,C, ' 551 ("The Secretary of the Interior [Agriculture] ..' may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction, ","), .