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<br />l1\.V-II-\l~ ID:44 <br /> <br />/"rcm- <br /> <br />T-O!! P,007/00B F-470 <br /> <br />~; <br /> <br />~ <br /> <br />November 17, 2003 <br />Page5of6 <br /> <br />oilier than agricultural irrigation or livestock watering use." See 43 V.S,c. ~ 1761(c)(I )(B) and <br />(e)(3)(A). <br /> <br />At the time of passage of ilie Ditch Bill, the Colorado Water Congress, among others, was <br />concerned that these provisions would adversely affect Ditch Bill easement holders because <br />many ditches through national forests are used by mutual ditch companies who! e shareholders <br />may ttaI'lsfer shares to non-agricultural entities, such as municipalities.6 The con"=5 were that <br />such a transfer might cause the Ditch Bill easement to tcnninate lIIId that the Department of <br />Agriculture (the "Department''), which has authority to administer rights-of-way under the Ditch <br />Bil~ might require FLPMA re-pennirting of rights ..of-way vested under the old sl:atures, such as <br />the 1891 Act, if the end use changes to a non-agricultural use. <br /> <br />Despite these concerns, the ranchers who supported the Ditch Bill, as well as the Congressional <br />committee considering it, did not want to delay the Bill's passage since the Congn::lsional session <br />was nearing its end. Therefore, the sponsoring Congressmen incolporated a lette r from Douglas <br />MacCleery, Department Deputy Assisrant SecretatY of Natural Resources an:l Environment <br />("MacCleery Letter"), into the Con~ssional Record. and. conditioned their SUP?ort of the Bill <br />on the commitments made in the MacCleery Letter listed below. <br /> <br />A. A change in the end use of water under a Ditch Bill easement would not <br />cause the Use of the right-of-way to cease, but Ditch Bill easements would automatically be <br />convened into permits under FLPMA. We are not aware of the USFS having adopted such <br />ptocedures. Such procedure, however, would give little comfort to a shareholder who loses his <br />Ditch Bill easement bccllUSe of the action of another shareholder in the ditch company. We need <br />Depar1lllent assurance, throu~ language in the Ditch Bm easement, that the ealement will nOI <br />terminaCe jf used for incidental domestic use. <br /> <br />B. Since the Department is committed to not requiring rc-permitting of <br />rights-or-way under the old statutes upon a change to non-agriculmral use7, this Sl?irit should also <br />apply to Ditch Bill easements sinee, as observed by Mr. MacCleery, "(tJhe end ';se of water off <br /> <br />6 <br /> <br />The USFS may require CQ-tenants in a diteh to each obtain separate easements, in which case <br />a forfeiture of one easement for unauthori2ed use should not effect the easements of the other co-tenants. <br />With mutual ditch companies, however, the company generally owns the assets, ineludJlg any rights-of- <br />way. and the water usets own stock in tlle compllIlY. If a Diteh Bill easement is isrued 10 a mutual ditch <br />company, any forfeiture of =h easement for improper use of water would iInpac:r all o:the shareholders <br />in the company. <br /> <br />7 <br /> <br />(W]e do nor assert that pre.FLPMA rights of way for water conveyance and "Iorage sys- <br />tems must be subjected to a repennlning process. The Department ree<',gnlzes that <br />long-standing uses ought not be diminished by insignificant defects ie, survey or <br />description made many years ago, or a change in the end use of the W1,tcr off the <br />Federallando. <br />