BOARD01661

• Board Meeting Date: 1/27/2004
• Description: ISF Section - Federal Ditch Bill Easements and Associated By-Pass Flow Requirements
• Board Meetings - Doc Type: Memo

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FlUNK E. (SAM) MAYNES
THOMAs H. SHIPPS
JANICE C. SHEFTEL
PATRICIA A. HALLt
SAMW.MAYNES
JOHN BARLOW SPEAR
STEVEN C. BOOs..t

Maynes, Bradford, Shipps & Sheftel, LLP
Attorneys at Law

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AsSOCIATES:

LARANNE A. BREACY
CHRISTOPHER Z. CANTRELL
MONn 'Y. MnlS

B'RONV. BRADroRD(1907-1985)
t ALSO ADMlTI'ED IN ARIZONA AND NAVAJO NATION
"ALSO AOMlTIED IN CAlJFORNIA.- NEW M~ICO AND UTAH

[phone]
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DRAFf 1/23104

January 23,2004

Rick Cables, Regional Forester
U.S. Forest Service
Rocky Mountain Region
P.O. Box 25127
Lakewood CO 80225-0127

re: Issuance of Ditch Bill Easements in Colorado and the Ditch Bill Easement Format

Dear Mr. Cables:

I am writing to ask your immediate attention to the issue of the U.S. Forest Service's execution of
Ditch Bill easements in Colorado. For a number of years, the Colorado Attorney General's
office, the Colorado Department of Natural Resources, the Colorado Water Conservation Board
("CWCB") and an ad hoc committee of the Colorado Water Congress ("CWC") have sought to
resolve this issue. With the support of those parties, I hereby request that the Ditch Easement
issue be put on the U.S. Forest Service's front burner and that we receive a response to this
written communication as soon as possible.

Background on attempt to reach agreement with the USFS

As you know, an easement under the Ditch Bill is a permanent easement promised to owners of
pre-1976 irrigation ditches as a non-discretionary action of the U.S. Forest Service and an
exception to Special Use Permits under the Federal Land Policy Management Act. See, 43 USC
9l761(b) and (c); see, also, PL 545, 100 Stat. 3047.

In 1999, the USFS sent a draft Ditch Bill easement format to water users in the San Juan
National Forest in Southwestern Colorado. That easement format, in effect, changed what is
intended under the Ditch Bill legislation to be a permanent easement into a renewable easement
with opportunities for the USFS to demand bypass flows. There were many, many other issues
in the easement format sent to Ditch Bill applicants in the San Juan National Forest that did not
comport with the language and intent of the Ditch Bill. An ad hoc group of water lawyers from
throughout the state conferred under the auspices of the CWC, prepared letters describing
extensive specific easement changes needed for the easement to comply with the intent of the

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