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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March 9, 2004
Page 3 of 6

Some of the tenns of the USPS=s Proposed Easement and O&M Plan which are of concern are
as follows:

1. Requirement to notify the USPS and obtain USPS approval prior to maintenance
of an easement. Proposed Easement at &6(b); Proposed O&M Plan at &&4-5, Because the USPS
may not respond in a timely fashion, the manner in which this requirement is implemented may
cause interference with the exercise of the easement. No such notice should be required in an
emergency,

2, Width of the Easement at page I of Proposed Easement, Description of the Water
System, Under the case of Hage v, United States, 42 Ped Cl. 249 (1998), the Court of Claims
held that the width of an easement under the Act of July 26, 1866, 43 USC I 661, is the area
occupied by the water and 50 feet on either side, Under PLPMA, 43 USC I 1764(a), the
Secretary is to determine the width of a right-of-way, taking into account the operation and
maintenance of the project, We believe there needs to be Department accountability in its
easement determinations,

3, Requirement to install and operate an "operable headgate." Proposed Easement at
&6(c), Many water users have historically used rocks in the stream bed for their diversion
structures, Requiring a headgate may cause fmancial hardship to many water users, We would
understand the need for the installation of a measuring device, which the Division Engineer may
reqUIre,

4, The public may use the easement area as long as such use does not "unreasonably
interfere" with the rights under the Ditch Bill easement. Proposed Easement at &A. We do not
believe any interference should be allowed,

5, Use only maintenance routes approved by USPS and repair all damage resulting
from said use, Proposed O&M Plan at &2, Although the USPS can require specific maintenance
routes to minimize environmental impacts, as long as such routes do allow for necessary
maintenance, the easement holder should not be required to repair "all" damage resulting from
use of the authorized maintenance routes, Certain impacts, such as the imprint of a trail or road,
are necessarily incidental to nonnal use of maintenance routes,

6, Requirement to notify USPS before using heavy equipment to maintain ditch,
Proposed O&M Plan at &5(a), While many irrigators may have historically maintained their
ditches with heavy equipment without contacting the USPS, while they do not have a
prescriptive right to continue such use without USPS approval, untimely USPS approval could
interfere with exercise of the Ditch Bill easement.