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<br />I'HJV-Jf-U~ ID:4~ <br /> <br />~ rem- <br /> <br />T-Ol1 P,oos/ooe F-4TO <br /> <br />" <br />, <br /> <br />'I <br /> <br />November 17, 2003 <br />P~e 4 of6 <br /> <br />7. Annual review of the O&M Plan. Proposed O&M Plan at '116. Tlus condition is <br />unnecessBIY and burdensome, The USFS has already considered the major is!lues related to <br />operation and maintenance of a Ditch Bill easement in its Proposed O&M Plan. <br /> <br />8. While the Proposed Easement, does not place a time limit on ~he Easement's <br />existence, it does provide for review of its conditions every 30 years, and the imt,osition of new <br />lerms as conditions may warrant. Proposed Easement at 115, Under a 3o-year review, the terms <br />and conditions could become so onerous as to render operation of the easement for agricultural <br />purposes infeasible, The USFS's actions would violate the Ditch BHl's direction that such <br />easements be permanent. <br /> <br />9. National Environmental Policv Act ("N"EP A") Analvsis. The USFB has suggested <br />that NEP A ill121ysis is required in relation to the establislunenr of conditions prior to the issuance <br />of a Ditch Bill easements. The Ditch Bill does not add to, or subtract fm:n, the USFS's <br />regulatory authority, except as set forth in the statute. <br /> <br />Although NEPA is One of the "applicable law[s]" with which the USFS must comply, even if the <br />USFS's proposed conditions for Ditch Bill easements constitute discretionary "federal action", <br />the granting of the easement itself is non-discretionary. If the USFS is entitled to conduct a <br />NEP A review, it should be liInited to a categorical exclusion which should result in a finding of <br />no significant impact ("FONSI") since the USFS is merely reiWating rights-of-way already in <br />existence. <br /> <br />10. Endan2ered Soecies Act ("ESAn) Resrolation. Whether the USFS has authority to <br />reserve in the Proposed Easement the right to re-initiate consultation under Secti('n 7 of the ESA <br />in the event a new species is listed or new critical habitat is designated, is a1sc an issue. The <br />ESA is another of the "applicable law[s]" with which the USPS must comply_ If the USFS is <br />entitled to impose terms and conditions designed to protect federally listed. threatened or <br />endangered species, such terms may not cause a Ditch Bill easement to be terminated or render <br />its operation infeasible. Of special concern is whether the USFS may impose "bypass flows," <br />requiring water users to leave II portion of their water right in the stream to protect endangered <br />species. <br /> <br />11. Reauirement of Al!Iicultural or Livestock Use, A Ditch Bill casement must be <br />"used solely for agricultural irrigation or livestock watering pwposes" and th:lt the easement <br />"shall terminate if the water system for which such easement was issued is used for any purpose <br /> <br />5 The Ditch Bill (43 U.S.C. ~ 1761(cX3)(B)) s1ateS as follows: <br /> <br />Nothing in this subsection shall be deemed to con.fer on the SecretaIy of AgrlClLlture any <br />power or authority to rellUlate or control in any tt1SJ1ner t~ appropriation, di,^~ion, or <br />use of water for any purposo (nor to diminish ""y such power Or authorlt)' of such <br />Secretary lInder applicable law). on <br />