Laserfiche WebLink
<br />,w " <br /> <br />"""1 <br /> <br />T-Ol! P,004/00B 1-410 <br /> <br />,', <br /> <br />i <br /> <br />November 17, 2003 <br />Page 2 of6 <br /> <br />requirements of FLPMA which are not incolLSistent with the Ditch Bill2. FLPM"- repealed old <br />rights-of-way statutes, but did not tenninate valid rights-of-way established under the old <br />statutes.. <br /> <br />Over 100 water users within the San Juan National Forest applied for Ditch Bill e.sements. The <br />U. S. Forest Service (the "USFS") drafted. a proposed easement (the "Proposed Ea,ement") and a <br />proposed operations and maintenance plan ("O&M Plan") which impose conditions on the <br />exercise of the Ditch Bill easement. The San Juan National Forest was selected ,as the "guinea <br />pig" fur issuance of the Proposed Easement and O&:M Plan. The attorneys for th,; Southwestern <br />Water Conservation District obtained the help of attorneys throughout the state, under the <br />auspices of the Colorado Water Congress and responded to the USFS with length;i comments on <br />the Proposed Easement and O&M Plan. <br /> <br />The tenns of the Proposed Easement include two tenns not previously imposed on Ditch Bill <br />easement holdcts: a reservation of authority to re-initiate consultation under S,~ction 7 of the <br />EndaJJgered Species Act in the event a new species is liste4 or new critical habitat is designated, <br />and a requirement for review of the terms and conditions of the Easement at the ,:nd of each 30- <br />year period, with the incolporation of new tcans in the Easement as condition; may warrant. <br />Additionally, the USFS has stated that some environmental analysis under the National <br />Environmental Policy Act is necessary in rclation to the imposition of its proposed terms and <br />conditions. <br /> <br />n. CONCERNS REGARDING PROPOSED EASEMENT AND O&M PI[,AN <br /> <br />Under FLPMA, the USFS is to impose conditions on all rights-of-way to protect the <br />environment, scenic and aesthetic values, fish and wildlife, public health and safcty, and the <br />public interest ("Public ValueS").3 While reasonable regulations related to thes!: pUlposcs may <br />be upheld by a court, such regulations cannot render the Ditch Bill easemcm impermanent, <br />require fees, or require additional tenns end COnditions at the time of the transfer ,)f an easement. <br />In addition, the USPS may have authority to impose terms end conditions, con;isrent with the <br />pwposes of national forests, pursuant to the Organic Administration ACt of 1897.' <br /> <br />2. See 43 V.S.C, !/1761(c)((3)(C) ("Except as otherwise provided in this sUbsecMn, all righrs-of- <br />way issued pursuant to this subsection are subject to all conditions and rtqulrem"tlts of this Act <br />[FLPMA].''). <br /> <br />3 <br /> <br />See 43 U.S,C. !/176S. <br /> <br />4 <br /> <br />Se.. ..g,. 16 U.s,C. S 551 (liThe S~retaty of the Interior [Agriculture] ... may make such <br />rules and regulations and e.cablish such service as will insure the objects of such reservuions, namely, to <br />re;u1ace their occupancy and use and to preserve the forestS thereon fraIL des1ruction. ..."), <br />