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Last modified
8/16/2009 2:49:08 PM
Creation date
10/4/2006 6:36:25 AM
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Template:
Board Meetings
Board Meeting Date
3/16/2004
Description
ISF Section - Federal Ditch Bill Easements and Associated By-pass Flow Requirements
Board Meetings - Doc Type
Memo
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<br />I1IOV-' '-U:l 11;1.4' <br /> <br />I"fOm- <br /> <br />1-01I P,0051l10i HTO <br /> <br />,) <br /> <br />'I <br /> <br />November 17, 2003 <br />Page 3 of6 <br /> <br />Some of the terms of the USFS's Proposed Easement and O&M Plan which are of ,:oncem are as <br />follows: <br /> <br />1. Requirement to notify tile USFS and obtain USFS approval prior I,) maintenance <br />of an easement. Proposed Easement at 'lf6(b); Proposed O&M Plan at 'lf~4-5. Because the <br />USFS lOay not respond in a timely fashion, the manner in which this requirement ,g implemented <br />may cauSe interference with the exercise of the easement. No such notice should be required in <br />an emergency. <br /> <br />2. Width of the Easement at page I of Proposed Easement, Descriotion of the Water <br />SYStem. Under the case of!fulle v. United States, 42 Fed Cl. 249 (1998), the (:"urt of Claims <br />held that the width of an easement llIIder the Act of July 26, 1866, 43 use ~ (i61, is the area <br />occupied by the water and 50 feet on either side. Under FLPMA. 43 USC !~ 1764(a), the <br />Secretary is to detennine the width of a right-of-way, taking into account the operation and <br />maintenance of the project. We believe there needs to be Department accountability in its <br />easement determinations. <br /> <br />3. Requirement to install and operate an "operable headgate.' Frope! ed Easement at <br />~6(c), Many water users have historically used rocks in the stream bcd for their diversion <br />structures. Requiring a headgate may cause financial hardship to many wIltet users. We would <br />understand the need for the installation of a measuring device, which the Divisioll Eneineer may <br />require. <br /> <br />4. The public may use the easement area as tong as such use does not "unreasonably <br />interfere" with the rights under the Ditch Bill easement. Proposed Easement at 'IT A. We do not <br />believe any interference should be allowed. <br /> <br />S. Use only UlIlintenance routes approved by USFS and repair all damage resulting <br />from said use. Proposed O&M PlilD at 112, Although the USFS can require specific maintenance <br />routes to minimize environmental impacts, as long as such routes do allow for necessary <br />maintenance, the easement holder should not be required to repair "llil" damagc: resulting from <br />use of the authorized maintepance routes. Certain impacts. such as the imprint of a trait Or road, <br />are necessarily incidental to nOlIIlal use of maintenance routes. <br /> <br />6. Requirement to notify USFS before using hcavy equipment to maintain ditch. <br />Proposed O&M Plan at '115(a). While many inigators may have historically maintained their <br />ditches with heavy equipment without contacting the USFS, while they do not have a <br />prescriptive right to continue such use without USFS approval, untimely USFS approval could <br />interfere with exercise of the Ditch Bill easement. <br />
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