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<br />. .....-. <br /> <br />~~.;;:,.., <br />.i"A1r,';'~..\ <br />(~~~j; <br />~:7 <br />. Un!tea States <br />llep4l:tment of <br />A9l:ioulture <br /> <br />. <br /> <br />. <br /> <br />Fore$t <br />Serv ice <br /> <br />PAONIA RANGER DISTRICT <br />P.O. BOX 1030 <br />Paonia, Colorado 81428 <br /> <br />-----------------------------------------------------------.------------------ <br /> <br />Reply to: 2720 <br /> <br />Date: May S, 1997 <br /> <br />PETER KASPER PRESIDENT <br />OVERLAND DITCH AND RESERVOIR COMPANY <br />1321 2900 ROAD <br />HOTCHKISS co 81419 <br /> <br />CERTIFIED MAIL <br />RETURN RECEIPl' REQUESTED <br /> <br />Dear Mr. Kasper: <br /> <br />This letter is being sent in response to your Febl:uary 7, 1997, letter stating <br />that the Overland Ditch and Reservoir Company (ODRe) had decided to pay a <br />rental fee in lieu of releasing the bypass flow agreed to in the 1986 Federal <br />Land Policy Management Act (FLPMA) Easement issued to ODRC. I apologize for <br />the delay in responding to that letter. <br /> <br />, j" <br /> <br />As we discussed with you and your attorneys during settlement negotiations <br />before Magistrate Judge Donald Abrams, we do not believe ODRC has the right to <br />elect to pay a fee in lieu of the agreement to release the 2 cfs bypass flow. <br />As a result of the environmental analysis done for the 1986 dam rehabilitation <br />project, the bypass flow was included in the easement as a mitigation measure <br />for loss of wetlands resulting from t~e project and to protect fisheries in <br />Cow Creek. The main reason the U.S. rish and Wildlife SerVice approved the <br />rehabilitation project was because the bypass flow was included. The minimum <br />reservoir pool was also considered a ~itigation measure approved by the U.S. <br />Fish and Wildlife Service. I have enClosed a copy of the letter from U.S. <br />Fish and Wildlife Service addressing those issues. <br /> <br />. <br /> <br />I/e take the position that paying a fee pursuant to Clause 2.b. of the 1986 <br />F'r,PMA Easement ia, in fact, a penalty and not an alternative to providing a <br />minimum pool, minimum instream flow o~ public use of the service trail. So <br />far ODRC has not failed to provide so~e minimum by-pass flow needed to support <br />the fishery below tne reservoir and ~erland Ditch in Cow Cree~, even though <br />that rate of flow has varied from weeK to week. We appreciate your adherence <br />to that requirement. <br /> <br />I am also enclosing a copy of the 404 Permit approved by the Army Corps of <br />Engineers, which includes the require~ent for release of the bypass flow. We <br />have consulted with the Army Corpa of Engineers; and they have affirmed that, <br />even though ene darn rehabilitation wo~k has been completed, it does not <br />relieve ODRC of the requirement to co~ply with the terms and conditions of the <br />404 permit. <br /> <br />. <br /> <br />~ <br /> <br />Caring for the land and Serving People <br /> <br />~'" ~....... ..." ,. ....... <br />